OUTLINES 

OF 

INTERNATIONAL  LAW 

WITH 

AN  ACCOUNT  OF  ITS  ORIGIN  AND  SOURCES  AND 
OF  ITS  HISTORICAL  DEVELOPMENT 


BY 

GEORGE  B.  DAVIS 

MAJOR  AND  JUDGE- ADVOCATE  U.S.A. 


NEW  YORK 
HARPER  &  BROTHERS,  FRANKLIN  SQUARE 


Copyright,  1887,  by  HARPER  &  BROTHERS. 

All  rights  reserved. 


PREFACE. 


IT  has  been  my  purpose  in  the  preparation  of  this 
volume  to  provide  a  work  sufficiently  elementary  in 
character  to  be  within  the  reach  of  students  and  others 
who  may  desire  to  gain  some  knowledge  of  the  general 
principles  of  International  Law.  It  is  intended  to  be 
used  as  a  text-book,  rather  than  as  a  book  of  formal 
reference.  To  that  end  the  use  of  citations,  and  of 
terms  technical  to  the  law,  has  been  avoided  wherever 
it  was  possible  to  do  so,  and  the  effort  has  been  made 
to  express  the  fundamental  principles  of  the  science  as 
concisely  as  possible  and  in  the  English  language. 

Where  quotations  have  been  found  necessary  they 
have  been  acknowledged  in  the  text,  and  the  student 
will  find,  at  the  end  of  each  chapter,  a  list  of  references 
to  state  papers,  or  to  the  works  of  writers  of  standard 
authority,  where  the  subjects  discussed  in  the  text  will 
be  found  treated  at  greater  length  and  in  more  elabo- 
rate detail. 

WEST  POINT,  N.  Y. 


2210000 


TABLE  OF   CONTENTS. 


List  of  Authorities  Cited xix 

CHAPTER  I. 

DEFINITION    AND    HISTORY. 

Of  Law  in  General 1 

Classification  of  Public  Law 1 

Municipal  Law 1 

International  Law 1 

International  and  Municipal  Law  Compared 2 

History  of  the  Science  of  International  Law 3 

The  Oriental  Monarchies 8 

Greece 3 

Rome 4 

The  International  Law  of  the  Middle  Ages 4 

Effects  of  the  Revival  of  Commerce 5 

Early  Codes  of  Maritime  Law 5 

The  ' '  Jugements  of  Oleron  "     . 5 

The  "  Consolato  del  Mare  " 6 

The  "Guidon  de  la  Mar" 6 

Other  Early  Codes 7 

Comparison  of  the  Sea  Laws 7 

Effects  upon  International  Law  of — 

The  Feudal  System 8 

The  Institution  of  Chivalry 10 

The  Roman  Church 11 

The  Church  and  the  Emperor 11 

(Ecumenical  Councils 13 

The  Rise  of  the  European  Monarchies 14 

The  Influence  of  Grotius 15 

The  Sources  of  International  Law 18 

Treaties  and  Conventions 18 

The  Judgments  of  International  Courts  and  Boards  of  Ar- 
bitration     <    .  19 

The  Diplomatic  Correspondence  of  States 19 


yj  TABLE  OF  CONTENTS. 

PAGE 

The  Roman  Law 19 

The  Works  of  Text  Writers 22 

Decisions  of  Courts  upon  Questions  of  International  Law  .  23 

The  Municipal  Law  of  States 24 

General  Histories,  Histories  of  Important  Epochs,  Biogra- 
phies, etc 24 

The  Divine  Law 24 

Divisions  of  International  Law 24 

The  Natural  Law  of  Nations 25 

The  Positive  Law  of  Nations 2o 

(a)  The  Customary  Law  of  Nations 25 

(J)  The  Conventional  Law  of  Nations 25 

The  Parties  to  International  Law 26 

References 26 

CHAPTER  II. 

STATES    AND   THEIE   ESSENTIAL   ATTRIBUTES. 

Definition  of  a  State 28 

The  Sovereignty  of  a  State 28 

The  Government  of  a  State 28 

Classification  of  Governments   . 29 

Classification  of  Governmental  Powers 30 

Governments  de  facto  and  dejure     .    , 30 

The  Essential  Attributes  of  Sovereignty 31 

Sovereignty 31 

Independence 31 

Equality 31 

Sovereign  States 32 

Dependent  or  Semi-sovereign  States 32 

Confederations 32 

Rule  for  Determining  the  Strength  of  a  Confederation    .    .  33 

Right  of  a  State  to  Change  its  Constitution  and  Laws     .    .  33 

Sovereignty,  how  Acquired,  how  Lost 34 

Territory 35 

Definition  of  the  Term 35 

River  Boundaries 35 

What  Constitutes  the  Territory  of  a  State 36 

Jurisdiction  over  Closed  Seas 37 

Rights  of  Ownership  and  Jurisdiction  in  the  case  of  Straits  37 

The  Danish  Sound  Dues 38 

Ship  Canals 39 

Jurisdiction  over  a  Portion  of  the  Coast  Sea,  the  Marine 

League 40 

Case  of  the  Franconia  .    .  .41 


TABLE  OF  CONTENTS.  yjj 

The  High  Seas *42 

Freedom  of  the  Seas 43 

Claims  to  Exclusive  Dominion 43 

Right  of  River  Navigation 44 

Action  of  the  Congress  of  Vienna 44 

Cases  of  the  Rhine,  Main,  Moselle,  Neckar,  Meuse,  and 

Scheldt 44 

Cases  of  the  Elbe,  Vistula,  Weser,  and  Po 45 

Case  of  the  Douro 45 

Case  of  the  Danube 45 

Case  of  the  Mississippi 46 

Case  of  the  St.  Lawrence 49 

Servitudes 52 

Origin  and  Definition  of  the  T«rm 52 

Its  Application  in  International  Law 52 

How  Created  and  Terminated 53 

Examples  of  Servitudes 54 

The  Right  of  Territorial  Jurisdiction 54 

Classification  of  Jurisdictional  Powers 54 

In  Whom  Vested 55 

The  Legislative  Power 55 

The  Executive  Power 56 

The  Judicial  Power 56 

Extra-territorial  Jurisdiction  of  a  State 57 

Over  the  Officers  and  Crews  of  Ships  of  War 57 

Over  its  Merchant  Vessels  on  the  High  Seas 57 

Over  its  Armies  in  the  Field .    . 59 

Over  Crimes  Committed  by  its  Subjects  in  Unoccupied 

Territory 59 

Over  the  Crime  of  Piracy 59 

The  Principle  of  Exterritoriality 59 

Origin  and  Definition  of  the  Term 59 

Application  to  Ships  of  War  in  Foreign  Ports 60 

Application  to  Armies  in  Transit 63 

Application  to  the  Person  of  a  Sovereign,  to  his  Retinue 
and  Train,  while  Passing  through,  or  Sojourning  in, 

Foreign  Territory 65 

Application  to  Ambassadors,  etc 67 

Application  to  Consuls,  and  to  Foreigners  in  Certain  East- 
ern Countries 67 

References 68 


TABLE  OF  CONTENTS. 


CHAPTER  III. 

PERFECT   AND    IMPERFECT    RIGHTS.  PAO, 

Perfect  Rights 70 

Classification  of 70 

The  Right  of  Self-preservation 70 

Duty  of  a  State  to  Protect  its  Subjects 72 

The  Right  of  Reputation 73 

The  Enforcement  of  Treaty  Stipulations 74 

Duty  of  Non-interference 74 

The  Right  of  Interference 74 

(a)  To  Assist  a  State  in  Suppressing  an  Insurrection 

or  Rebellion 75 

(J)  Interference  in  Accordance  with  Treaty  Stipula- 
tions      76 

(c)  In  Self-defence 77 

(d)  Interference  in  Behalf  of  the  Balance  of  Power  .    .  77 

De  Marten's  Statement  of  the  Principle  of  Balance 

of  Power 80 

Vattel's  Rules 81 

Senior's  Limitation  of  the  Right 81 

(e)  Interference  in  Behalf  of  Oppressed  Populations     .  82 
The  Duty  of  Mutual  Respect 83 

Forms  of  Mutual  Courtesy 85 

Maritime  Ceremonial 87 

Ceremonial  in  Foreign  Ports 88 

International  Agreement  as  to  Salutes 90 

Observance  of  National  Anniversaries 91 

Ceremonial  on  Land 91 

The  Formalities  of  Diplomatic  Intercourse 92 

Imperfect  Rights,  or  Moral  Claims 92 

The  Duty  of  Humanity 93 

The  Duty  of  Comity 94 

The  Duty  of  Intercourse 94 

(a)  Interstate 94 

(6)  Commercial 95 

CHAPTER  IV. 

NATIONAL    CHARACTER. 

National  Character  of  an  Individual,  how  Determined  ....  98 

Definition  of  the  Terms  Citizen  and  Subject 98 

Classification  of  Citizens 99 

Native-born  Citizens. 99 

Naturalized  Citizens .  100 


TABLE  OF  CONTENTS.  JX 

PAOC 

Naturalization 100 

Conditions  of  Naturalization 101 

Heinrich's  Case 102 

Koszta's  Case 103 

Largomarsini's  Case 105 

Ungar's  Case 106 

Naturalization  Treaties  of  the  United  States 107 

Expatriation 108 

Conditions  of 108 

Policy  of  States  in  the  Matter  of 109 

Aliens  and  Domicile 110 

History  of  the  Treatment  of  Aliens 110 

Definition  of  the  Term 112 

(a)  Aliens,  or  Aliens  Proper 112 

(b)  Domiciled  Strangers 112 

Legal  Situation  of  Aliens 112 

Domicile 116 

Distinction  between  Citizenship  and  Domicile 117 

Conditions  of  Domicile 118 

Importance  of  the  Rules  of  Domicile 121 

References 1 121 

CHAPTER  V. 

EXTRADITION. 

The  Right  of  Criminal  Jurisdiction 123 

Duty  of  a  State  as  to  Crimes  Committed  Abroad 123 

Extradition  by  Comity  and  Treaty 124 

Difference  of  View  as  to  Criminal  Jurisdiction 124 

Definition  of  the  Term  Extradition 126 

Methods  of  Extradition 126 

(a)  By  Treaty 126 

(b)  In  Accordance  with  Municipal  Law 126 

(c)  By  Comity 126 

Extraditable  Offences 126 

Requisitions  for  Extradition,  by  Whom  Made 127 

Conditions  of  Extradition 127 

Extradition  Treaties  of  the  United  Slates 128 

Interstate  Extradition  in  the  United  States 129 

References 131 

CHAPTER  VI. 

PRIVATE    INTERNATIONAL   LAW. 

Relations  of  States  and  Individuals  at  International  Law     .    .  132 

Definition  of  Private  International  Law 132 


x  TABLE  OF  CONTENTS. 

MM 

Practice  of  International  Law  Based  on  Comity  or  Consent.    .  132 

Origin  of  the  Practice 133 

Subjects  Discussed  in  Private  International  Law 136 

Limitations  upon  the  Practice  of  Private  International  Law    .  137 

Foreign  Judgments 138 

Effect  of 138 

Conditions  to  be  Fulfilled  in  Order  that  Effect  may  be 

Given  to 138 

Condition  of  Reciprocity 138 

Why  Produced  before  the  Courts  of  a  State 139 

Practice  of  States  in  the  Matter  of 139 

References 140 

CHAPTER  VII. 

THE    EIGHT   OF   LEGATION. 

Origin  of  the  Right .  141 

The  Right  of  Legation 142 

Classification  of  Diplomatic  Agents .    .  143 

Rank  of  Ambassadors .  144 

Titles  of  Ambassadors 145 

Manner  of  Sending  and  Receiving  Ambassadors   ....  146 

Reception  of  Ambassadors 146 

Duties  of  Ambassadors 147 

Diplomatic  Language 147 

Functions  of,  how  Suspended  and  Terminated 148 

Privileges  and  Immunities  of  Ambassadors.  .......  149 

Necessity  of  Immunities 149 

The  Principle  of  Exterritoriality 150 

Immunity  from  Criminal  Jurisdiction 1-50 

Immunity  from  Civil  Jurisdiction 151 

Immunity  of  Hotel 152 

Privilege  of  Religious  "Worship 153 

Exemption  from  Customs  Dues 153 

Consuls,  their  Duties  and  Privileges 154 

Origin  of  the  Consular  Function ,  154 

The  Duties  of  Consuls .'156 

Classification  of  Consular  Employees 157 

Privileges  and  Immunities  of  Consuls 157 

By  whom  Appointed 158 

How  Recognized  in  Foreign  States 158 

The  Exequatur 158 

Manner  of  Appointment  in  the  United  States 160 

Consular  Jurisdiction 161 

Extent  and  Character  of 162 


TABLE  OF  CONTENTS. 


TAGS 


Jurisdiction  of  U.  S.  Consuls 162 

References 164 

CHAPTER  VIII. 

TREATIES   AND   CONVENTIONS. 

Definition  and  Purpose 165 

The  Right  of  Making  Treaties 165 

Contracts  and  Agreements  with  Individuals 166 

The  Treaty-Making  Power 166 

Limitations  upon  the  Treaty-Making  Power 167 

Conditions  Essential  to  the  Validity  of  Treaties 167 

The  Power  of  the  Contracting  Parties 167 

The  Consent  of  the  Contracting  Parties 168 

Possibility  of  Execution 168 

Binding  Force  of  Treaties 169 

Manner  of  Negotiating  Treaties 169 

Language  Used 170 

Form  and  Signature 171 

Ratification  of  Treaties 172 

Classification  of  Treaties 173 

Transitory  Agreements  or  Conventions 174 

Permanent  Treaties 174 

Cartels    . • 174 

Capitulations 174 

Treaties  of  Alliance 175 

Treaties  of  Guarantee 176 

Reciprocity  Treaties 178 

Treaties,  how  Terminated 179 

How  Violated 179 

Rules  for  Interpreting  Treaties 180 

Strict  Interpretation 182 

Liberal  Interpretation 182 

Terms  Used 183 

Protocol 188 

Recez 183 

Separate  Articles 183 

The  Most  Favored  Nation  Clause 183 

References 184 

CHAPTER  IX. 

THE   CONFLICT   OP   INTERNATIONAL   EIGHTS. 

Causes  of  Conflict 186 

Methods  of  Adjusting  International  Differences  .    ...    .    .  186 

Amicable  Adjustment 186 


yji  TABLE  OF  CONTENTS. 

MMB 

The  Duty  of  Moderation 189 

Mediation 190 

Arbitration 191 

Conditions  of  Arbitration 191 

Binding  Effect  of  Decision 192 

Mediation  and  Arbitration  Compared 192 

Measures  of  Redress 193 

Retorsion 194 

Reprisals 195 

References •„  •  • 197 

CHAPTER  X. 

WAE. 

The  Right  of  Redress     . 198 

Definition  and  Purpose  of  War 198 

Rightfulness  of  War -         ...  199 

Classification  of  Wars 199 

Internal  Wars 199 

(a)  Civil  Wars 199 

(ft)  Insurrections  and  Rebellions 199 

Belligerents  ....    .......    -    •    • 20° 

The  Laws  of  War 200 

Right  of  Declaring  War,  in  Whom  Vested 201 

Causes  of  War 201 

Responsibility  for  a  Resort  to  War 202 

Moral  Considerations  Involved 202 

Declaration  of  War,  Ancient  and  Modern  Rule 203 

Official  Notification  of  an  Intended  Resort  to  War 204 

Effect  of  War  upon  Treaties  of  Alliance,  Guarantee,  and  Sub- 
sidy    204 

Effects  of  a  State  of  War 205 

(a)  Upon  the  Belligerent  States 205 

(6)  Upon  the  Subjects  of  the  Belligerent  States     ....  205 

(c)  Upon  the  Property  of  Enemy  Subjects 207 

The  Laws  of  War 208 

Their  Character  and  Tendency 208 

Subjects  Treated  of 210 

Amount  and  Kind  of  Force  that  may  be  Used 210 

Legal  Effects  of  a  State  of  War  upon  the  Subjects  of  the  Bel- 
ligerent States 210 

Who  may  Lawfully  Carry  on  War 211 

Partisans 211 

Levees  en  masse .  212 


TABLE  OF  CONTENTS. 

PAQB 

Guerillas 214 

Forces  that  may  not  be  Employed  in  War 214 

Wars  with  Savages 215 

Forces  Employed  at  Sea 215 

Privateers 216 

Letters  of  Marque 216 

Letters  of  Marque  and  Reprisal 216 

Effect  of  Modern  Inventions 218 

Methods  of  Carrying  on  War 218 

Rule  of  Good  Faith 219 

Use  of  Deceit 219 

Attack  of  Places 219 

Duty  of  the  Commander  of  a  Besieged  Place  in  the  Matter  of 

Surrender 221 

Use  of  the  Enemy's  Uniform  and  Flag 222 

Giving  arid  Receiving  Quarter 222 

Treatment  of  Individuals  of  the  Enemy 223 

Forbidden  Practices 223 

Instruments  of  War 223 

Rule  for  Determining  whether  a  Particular  Instrument  may, 

or  may  not,  be  Used  in  War 224 

Torpedoes,  and  Torpedo  Warfare 225 

Usages  of  War  at  Sea 226 

The  Public  and  Private  Property  of  the  Enemy 226 

Treatment  of  Property  on  Land 226 

Requisitions 228 

Contributions 230 

Captured  Property  on  Land 230 

Treatment  of  Non-combatants  in  the  Theatre  of  War  ....  232 

Combatant,  Defined 232 

Non-combatant,  Defined 233 

Prisoners  of  War 233 

Who  may  be  Made  Prisoners  of  War 233 

Treatment  of 234 

Exchange  of 235 

Paroles .236 

From  Whom  Received 236 

Breach  of  Parole 237 

Intercourse  between  Belligerents 237 

Flags  of  Truce 238 

Cartels  and  Capitulations 239 

Safe-conducts  and  Safeguards 239 

Licenses  to  Trade 240 


xjv  TABLE  OF  CONTENTS. 

MM 

Offences  Against  the  Laws  of  War 241 

By  Whom  Punished 241 

Spies 241 

Guerillas 242 

Pillaging 243 

Crimes  of  Violence,  etc 243 

Temporary  Occupation 244 

History  of  the  Different  Views  of 245 

Present  View  of  Military  Occupation 246 

Rights  of  Occupation 247 

Martial  Law 247 

The  State  of  Siege 247 

Differences  of  Opinion  as  to  the  Meaning  of  the  Term 

Occupation 250 

Opposing  Views 250 

Permanent  Occupation 251 

Retaliation 251 

How  Exercised  in  War 252 

The  Termination  of  War 253 

Truces 253 

What  may  be  Done  during  a  Special  Truce 253 

General  Truces,  Armistice 254 

Treaties  of  Peace 255 

How  Different  from  Ordinary  Treaties 255 

Binding  Character  of 256 

How  Made 256 

Preliminary  and  Definitive  Treaties 257 

When  Binding 257 

Effects  of  Treaties  of  Peace 257 

Treatment  of  Occupied  Territory 258 

The  Rules  of  Maritime  Capture 259 

Tendency  and  Character  of 259 

Forces  Employed  in  Maritime  War 260 

Definition  of  Prize 261 

Title  to  Prize,  in  Whom  Vested 261 

Duty  of  Captor 261 

Ransom  of  Captured  Vessels 263 

Ransom  Contracts 264 

Hostages 265 

Recapture  and  Postliminy 266 

Prize  Courts  and  their  Jurisdiction 268 

Character  of  Prize  Jurisdiction 269 

Law  Applied  in  Cases  of  Prize 270 

Procedure  in  Prize  Cases 270 

Right  of  Appeal  in  Prize  Cases 278 


TABLE  OF  CONTENTS.  Xy 

PACK 

Rules  for  Determining  the  Nationality  of  Ships  and  Goods  272 

References 274 

CHAPTER  XI. 

NEUTRALITY. — THE  RIGHTS  AND  DUTIES  OP  NEUTRALS. 

Definition  of  the  Term 276 

Character  of  the  Neutral  Relation 276 

History  of  Neutrality 276 

Origin  and  Development  of  the  Modern  Theory  of  Neutral 

Obligation 277 

Rule  of  the  "  Consolato  del  Mare  " *279 

General  Acceptance  of  the  Rule 279 

The  Principle  of  "Free  Ships,  Free  Goods" 281 

Rules  of  the  Declaration  of  Paris 284 

Binding  Force  of  the  Declaration 286 

Effect  of  Claims  to  Exclusive  Dominion  upon  the  Develop- 

~  ment  of  the  Neutral  Theory 288 

The  Monopoly  of  Colonial  Trade 291 

The  Rule  of  175(j 292 

Development  of  the  Theory  of  Neutrality  among  the  Non- 
Maritime  States  of  Europe 292 

Influence  of  England 293 

General  Acceptance  of  the  Modern  Theory  in  the  Seven- 
teenth Century;  its  Later  History 294 

Gradations  of  Neutrality 295 

Permanent  Neutrality 296 

Armed  Neutrality 296 

Strict  Neutrality 297 

Neutral  Duty  of  a  State 297 

Duties  of  Neutrals  to  Belligerents 299 

Asylum  to  Troops  and  Ships 299 

Asylum  in  the  Case  of  Public  and  Private  Vessels    .    .    .  299 

Neutral  Territory,  Immunity  of  from  Acts  of  Belligerency  800 

Responsibility  of  a  Neutral  State  for  the  Acts  of  its  Subjects  .  302 

View  of  England  and  the  United  States 303 

Continental  View  of  the  Same  Subject 305 

Neutral  Rights 306 

Their  Character  and  Extent 306 

Case  of  the  Chesapeake 307 

Case  of  the  Florida 308 

Neutrality  Laws 309 

Neutral  Obligation  of  a  State  Determined  by  International, 

not  Municipal,  Law 310 

English  Neutrality  iaws 311 


TABLE  OF  CONTENTS. 


PAGE 


Neutrality  Laws  of  the  United  States 313 

Neutrality  Laws  of  other  States 314 

Case  of  the  Alabama 315 

The  Geneva  Arbitration 327 

References 335 

CHAPTER  XIL 

CONTRABAND  OF  WAR. 

History  of  the  Practice 336 

Power  of  a  Belligerent  over  Neutral  Commerce  in  Time  of 

»              War 338 

General  Character  of  the  Restrictions 338 

The  Rules  of  Contraband  Affect  Chiefly  the  Acts  of  Indi- 
viduals   339 

Character  of  Contraband  Trade 339 

Rules  for  Determining  Contraband 340 

Difficulty  of  Stating  a  Precise  Rule 340 

The  Question  Determined  by  Prize  Courts 341 

Field's  Rule 341 

Rule  of  the  Supreme  Court  of  the  United  States   ....  342 

Application  of  the  Rules 343 

Destination  of  Ships  and  Goods 345 

Destination,  how  Determined 345 

Case  of  the  Springbok 346 

Case  of  the  Peterhoff 349 

The  Doctrine  of  Continuous  Voyages 351 

Difference  between  the  Old  and  New  Rule 352 

Penalty  for  Contraband  Trade 353 

Rule  as  to  Innocent  Cargo 354 

Release  of  Neutral  Ship  on  Surrender  of  the  Contraband 

Cargo 355 

Neutral  Conveyance  of  Enemy's  Troops  and  Despatches.    .    .  356 

Definitions  of  the  Terms 356 

The  Destination  Important 357 

Cases  of  the  Friendship  and  Greta 357 

Presumption  in  the  Case  of  Hostile  Despatches 358 

Despatches  of  a  Belligerent  to  its  Ministers  and  Consuls  in 

Neutral  State 358 

Conveyance  of  Mails  in  the  Ordinary  Course  of  Business   .  359 

Case  of  the  Trent 360 

Occasional  Contraband 362 

The  Rule  of  Pre-emption 364 

References .  365 


TABLE  OF  CONTENTS.  xvji 


CHAPTER  XIII. 

BLOCKADE.  piGE 

Blockade 366 

Definition  of 366 

Right  of  Blockade,  where  Exercised 366 

Valid  Blockade 367 

How  Established  and  Notified 367 

(a)  By  Proclamation 368 

(b)  By  Notification  or  Endorsement 368 

(c)  By  Proclamation  and  Notification 368 

What  Constitutes  a  Breach  of 369 

Penalty  for  Breach  of 370 

Cases  of  Innocent  Entrance  to  Blockaded  Ports     ....  370 

Duration  of  the  Penalty 371 

Breach  of  Blockade  by  Egress 372 

Termination  of  Blockade 372 

Pacific  Blockade 373 

References 373 

CHAPTER  XIV. 

THE    EIGHT    OF   SEARCH. 

The  Right  of  Search,  a  Belligerent  Right 375 

When  and  Where  Exercised 375 

Manner  in  which  the  Right  is  Exercised 376 

Duty  of  Boarding  Party 377 

The  Right  of  Visitation 379 

Impressment  of  Seamen 380 

Controversy  between  England  and  the  United  States     .    .  381 

The  Right  of  Convoy 388 

Views  of  England  as  to 384 

Views  of  the  United  States  as  to 385 

Not  a  Right  According  to  International  Law 386 

Searches  Authorized  in  Time  of  Peace 386 

(a)  To  Execute  Revenue  Laws 387 

(b)  On  Suspicion  of  Piracy 387 

(c)  Search  of  Merchant  Vessels  by  War  Vessels  of  the 

Same  State 387 

(d)  Right  of  Approach  to  Verify  Nationality 387 

Case  of  the  Virginius 388 

References 392 

B 


xviii  TABLE  OF  CONTENTS. 

PAOB 

APPENDIX  A.   Instructions  for  the  Government  of  Armies  in 

the  Field.     By  Dr.  Francis  Lieber     ....    395 

B.  The  Geneva  Convention  of  1864  and  1868     .    .    429 

C.  The  Declaration  of  Paris  of  1856 437 

D.  The  Declaration  of  St.  Petersburg  of  1868    .    .    440 
"          E.   The  Rules  of  War  on  Land,  Recommended  for 

Adoption  by  the  Institute  of  International  Law 
at  its  Oxford  Session  of  1880 442 

INDEX  ........    .    .    .    o    ......  -   461 


LIST  OF  AUTHORITIES 

CITED  IN  THE  PREPARATION  OF  THIS  VOLUME. 


Abdy.     See  Kent's  Commentaries. 

Amos,  Sheldon.      Political  and  Legal  Remedies  for  War.      New 

York,  1880. 

The  Science  of  Law.     New  York,  1875. 
Azuni.    The  Maritime  Law  of  Europe.    2  vols.     New  York,  1806. 

Bar,  E.    International  Law  (Private).    Edinburgh,  1885. 

Bernard,  Mountague.    The  Neutrality  of  England  during  the  Amer- 
ican Civil  War.     London,  1870. 

Bluntschli,  J.  C.    Le  Droit  de  Butin  en  General  et  Specialement  du 

Droit  de  Prise  Maritime.    Brussels,  1877. 
Le  Droit  International  Codifie.     Paris,  1874. 
Das  moderne  Volkerrecht  der  civilisirten  Staten  als  Reichsbuch 
dargestelt.     Leipsic,  1877. 

Boyd,  A.  C.     See  Wheaton. 

Brenton,  E.  P.    The  Naval  History  of  Great  Britain,  1783-1836. 
2  vols.    London,  1837. 

Bryce.    The  Holy  Roman  Empire.    London. 

Bynkershoek,  Cornelius.    Treatise  on  the  Laws  of  War.     American 
Edition.    Philadelphia,  1810. 

Calvo,  Carlos.    El  Derecho  Internacional.    Paris,  1862. 
Le  Droit  International.     Paris,  1862. 
Colleccion  Completa  de  los  Tratados  de  Todos  los  Estados  de 

la  America  Latina.     6  vols.     Paris,  1862. 
Cooley,  T.  M.    The  General  Principles  of  Constitutional  Law  in  the 

United  States  of  America.    Boston,  1880. 
Constitutional  Limitations.    5th  Edition.     Boston,  1883. 
Creasy,  E.  S.    First  Platform  of  International  Law.    London,  1876. 
Gushing,  Caleb.    The  Treaty  of  Washington.    New  York,  1873. 
CiLssy,  Ferdinand  de.    Dictionnaire  ou  Manuel  Lexique  du  Diplo- 
mate  et  du  Consul.    Leipsic,  1846. 


XX 


LIST  OF  AUTHORITIES. 


Dahlgren,  Admiral  J.  A.,  U.S.N.    International  Law.   Boston,  1877. 

De  Lolme.  The  Constitution  of  England.  Chandos  Edition.  Lon- 
don and  New  York,  n.  d. 

Dictionnaire  Universel  du  XIXme  Siecle.  P.  Larousse.  16  vols. 
Paris,  1866. 

Diplomatic  Correspondence  of  the  United  States.  Various  years. 
Washington,  D.C. 

Dumont,  Jean.  Corps  Universel  Diplomatique  du  Droit  des  Gens. 
8  vols.  Amsterdam  and  The  Hague,  1726-31. 

Elliot,  Jonathan.  The  American  Diplomatic  Code.  2  vols.  Wash- 
ington, 1834. 

Field,  D.  D.  Draft  Outlines  of  an  International  Code.  1  vol. 
New  York,  1874. 

Foreign  Kelations  of  the  United  States.  Various  years.  Washing- 
ton, D.C. 

Garden.    Histoire  General  des  Traites  de  Paix.     14  vols.     Paris, 

1853. 
Geneva  Arbitration.    Foreign  Relations  of  the  United  States.    1872, 

1873.    4  vols.    Washington,  1873. 

Gessner,  L.    Les  Droits  des  Neutres  sur  Mer.    2d  Edition.    Paris. 
Grotius,  Hugo.    De  Jure  Belli  et  Pacis.     1  vol.    Paris,  1625. 

Barbeyrac's  French  Edition.     Various  editions.    Paris,  1724- 

1768. 

The  Laws  of  War.    First  English  Edition,  4to.    London,  1738. 

"  "          Whewell's  English  Edition.    London,  1853. 

(There  are  also  translations  in  German,  Dutch,  Swedish,  and  Danish.) 

Hatt,  W.  E.    International  Law.     Oxford,  1880. 

HaUam,  H.  The  Constitutional  History  of  England.  Chandos  Edi- 
tion. New  York  and  London,  n.  d. 

HaUeck,  H.  W.,  Maj.-Gen.  U.S.A.    International  Law,  by  Sir  Shep- 

stone  Baker.    2  vols.    London,  1878. 

International  Law.    1.  American  Edition.    1  vol.     San  Fran- 
cisco, 1861. 
International  Law.     2.  Students'  Edition.     Philadelphia,  1866. 

Hautcfeuille,  J.  B.  Des  Droits  des  Nations  Neutres,  etc.  Paris, 
1859. 

Heffter,  A.  G.  Le  Droit  International  Public  de  1'Europe.  Berg- 
son's  Edition.  1  vol.  Paris,  1866. 


LIST  OF  AUTHORITIES.  xxj 

Henshaw,  J.  S.  A  Manual  for  United  States  Consuls.  New  York, 
1849. 

Eertskt,  Lewis.  Complete  Collection  of  Treaties  and  Conventions  be- 
tween Great  Britain  and  Foreign  Powers.  London,  1827-35. 
Map  of  Europe  by  Treaty  since  the  Peace  of  1814.  3  vols. 
London,  1875. 

Hildreth,E.   History  of  the  United  States.    6  vols.   New  York,  1849. 

Holmes,  0.  W.    See  Kent. 

Ihne,  William.    History  of  Rome.     5  vols.     London,  1871. 

Kent,  James.    Commentaries  on  American  Law.    Holmes's  Edition. 

2  vols.    Boston,  1873. 
Commentaries  on  American  Law.     Abdy's  Edition.    London, 

1878. 
Kluber,  J.  L.    Droit  des  Gens  Moderne  de  1'Europe.     Ott's  Edition. 

Paris,  1861. 
Droit  des  Gens  Moderne  de  1'Europe.    2d  Edition.    Paris,  1874. 

Laveleye,  E.  de.    Des  Causes  Actuelles  de  Guerre  en  Europe  et  de 

1'Arbitrage.    Brussels  and  Paris,  1873. 
Lawrence,  W.  B.     A  Study  on  Consular  Jurisdiction  (see  Revue 

de  Droit  Int.).     Brussels,  1878. 
See  Wheaton. 
Lawrence,  T.  J.     Essays  on  Modern  International  Law.     1   vol- 

London,  1884. 

Laws.     See  Revised  Statutes  of  the  United  States. 
Larimer,  J.     The  Obligations  of  Neutrals.     Edinburgh,  1873. 
Institutes  of  the  Law  of  Nations.     Edinburgh,  1884. 
The  Final  Problem  of  International  Law  (see  Revue  de  Droit 
Int.).    Brussels,  1877. 

Maine,  Sir  H.  8.    Ancient  Law.     New  York,  1864. 

Lectures  on  the  Early  History  of  Institutions.   New  York,  1875. 
Popular  Government.     New  York,  1886. 
International  Law.     London,  1888. 
Manning,  William  Oke.     Commentaries  on  the  Law  of  Nations. 

Amos's  Edition.    London,  1875. 

Martens,  Ch.  de.    Recueil  Manuel  et  Pratique  des  Traites,  Conven- 
tions, etc.,  1760-1857.     Leipsic,  1857. 
Causes  Celebres  du  Droit  des  Gens.    Leipsic,  1827. 
Nouvelles  Causes  Celebres  du  Droit  des  Gens.    G.  F.  de  Mar 
tens's  Edition.     Leipsic,  1844. 


xxii  LIST  OF  AUTHORITIES. 

Martens,  O.  F.  de.    Precis  du  Droit  des  Gens  Moderne  de  1'Euiope. 

Ch.  Verge's  Edition.     2  vols.     Paris,  1864. 
Recueil  des  Traites.     8  vols.,  with  Murrhard's  Continuation. 

Paris,  1817-1844. 
Recueil  des  Traites,  with  Samwer  and  Hofl's  Continuation. 

Gottingen,  1876. 

Cours  Diplomatique.     3  vols.     Berlin,  1801. 
Mitts,  If.  E.     The  Law  of  Eminent  Domain.     St.  Louis,  1879. 
Miltitz,  A.  de.     Manuel  des  Consuls.     London,  1843. 
Mommsen.    The  History  of  Rome.     4  vols.     New  York,  1885. 
Moore,  John  B.     Moore  on  Extradition.     2  vols.     Boston,  1891. 
Mbrey,  W.  C.     Outlines  of  Roman  Law.     New  York,  1884. 

Neumann,  L.    Handbuch  des  Consulatswesens  mit  besonderer  Be- 

riicksichtigung  des  6'sterreichischen  Reichs.    Vienna,  1854. 

Nys,  E.    Les  Origines  de  la  Diplomatic  et  le  Droit  d'Ambassade 

Jusqu'ii  Grotius.     Brussels,  1884. 
La  Guerre  Maritime.     Brussels,  1881. 

Ortolan,  E.    Diplomatic  de  la  Mer.     2  vols.     Paris,  1856. 

Phillimore,  Sir  B.    International  Law.     4  vols.     2d  Edition.     Lon- 
don, 1871. 

Puffendorf.    De  JuraB  Naturae  et  Gentium.     London,  1672. 
French  edition  by  Barbeyrac,  1706. 

Rarike,  L.  wn.     History  of  the  Popes.     2  vols.     Philadelphia. 

1841. 
A  History  of  England,  principally  in  the  17th  Century.    5  vols, 

Oxford,  1875. 

Universal  History.     Vol.  1.     New  York,  1885. 
Revised  Regulations,  United  States  Army.     Washington,  1881. 
Regulations,  United  States  Navy.    "Washington,  1876. 
Reports,  American.     Supreme  Court. 

Vols.    1-4,      Dallas.         Vols.    1-4,     1790-1800. 
"      5-13,       Cranch.  "       1-9,     1800-1815. 

"    14-25,      Wheaton.         "     1-12,     1816-1827. 
"    26-41,      Peters.  "     1-16,     1827-1842. 

"     42-65,       Howard.  "     1-17,     1843-1860. 

"    66,67,      Black.  "      1,2,    1861,1862. 

"    68-90,      Wallace.          "     1-23,     1863-1874. 
"  91-103,      Otto.  "     1-10,     1875-1880. 


LIST  OF  AUTHORITIES. 

Reports,  English.     Admiralty  and  Prize. 

Robinson's  Admiralty  Reports.     6  vols.     Boston,  1861. 

Dodson's  Admiralty  Reports.    Boston,  1861. 
Revised  Statutes  of  the  United  States.     Washington,  1878. 
Revue  de  Droit  International.     Vols.  i.-xiv.  (1869-1882).     Brussels. 
Bymer,  Thomas.     Foedera,  Conventiones,  etc.     Clarke's   Edition. 
London,  1816. 

Schuyler,  Eugene.    American  Diplomacy  and  the  Furtherance  of 

Commerce.     New  York,  1886. 

Spear,  S.  T.    The  Law  of  Extradition.     New  York,  1885. 
Stephen,  Sir  J.  F.    History  of  the  Criminal  Law  of  England.    3  vols. 

London,  1883. 

Story,  Joseph.   Commentaries  on  the  Conflict  of  Laws.    Boston,  1834. 
Commentaries  on  the  Constitution  of  the  United  States.    2  vols. 

Cooley's  Edition.    Boston,  1873. 

Thiers.     A  History  of  the  French  Revolution.     Philadelphia,  1847. 

History  of  the  Consulate  and  Empire.     London,  1876. 
Treaties  of  the  United  States.     See  Treaties  and  Conventions  of  the 
United  States.     Washington,  1871.     A  later  edition,  with 
valuable  notes,  was  issued  in  1889. 
See  also  United  States  Statutes  at  Large,  1875,  pp.  819--902  for 

Analytical  Index.     Washington,  1875. 

United  States  Statutes  at  Large.     Annual  Volumes,  1875-91. 
Washington. 

Upton,  F.  H.  The  Law  of  Nations  Affecting  Commerce  during 
War.  1  vol.  New  York,  186?. 

Vattel,  E.  de.  Le  Droit  des  Gens  ou  Principes  de  la  Loi  Naturelle 
Appliques  a  la  Conduite  et  aux  Affaires  des  Nations  et  des 
Souverains.  2  vols.  Leyden,  1758. 

The  Law  of  Nations.    Chitty's  English  Edition.    London,  1797. 

Of  the  older  works  upon  International  Law,  Vattel  is 

cited  more  frequently  than  any  other.    This  is  the  case  not 

only  in  the  works  of  text  writers,  but  in  the  diplomatic 

correspondence  of  modern  states. 

Ward,  Robert.  An  Enquiry  into  the  History  and  Foundation  of 
the  Law  of  Nations  in  Europe.  2  vols.  London,  1795. 

Warden,  D.  B.    On  the  Origin,  Nature,  Progress,  and  Influence  of 

Consular  Establishments.     Philadelphia,  1813. 
The  same.     French  Edition.     Paris,  1815. 


LIST  OF  AUTHORITIES. 

Wharton,  F.    The  Conflict  of  Laws  (Edition  of  1881).     Boston, 

1881. 
A  Digest  of  the  International  Law  of  the  United  States.     3 

vols.    Washington,  1886. 
Wheaton,  Hemy.     The  Elements  of  International  Law.    3  vols. 

Philadelphia,  1836. 

W.  B.  Lawrence's  Edition.     Boston,  1863. 
R.  H.  Dana's  Edition.     Boston,  1866. 
A.  C.  Boyd's  Edition.    London,  1878. 
French  Edition.     2  vols.     Paris,  1841. 

"  "  "         Leipsic,  1874. 

History  of  the  Law  of  Nations  in  Europe  and  America.     New 

York,  1845. 
Digest  of  the  Law  Maritime,  Captures,  and  Prizes.    New  York, 

1815. 
Wildman,  S.    Institutes  of  International  Law.     2  vols.     London, 

1849. 

Wbolsey,  T.  D.    Introduction  to  the  Study  of  International  Law 
5th  Edition.    New  York,  1878. 


OUTLINES 

OF 

INTERNATIONAL   LAW. 


CHAPTER  I. 

DEFINITION   AND   HISTORY. 

1.  Definition. — In  its  most  general  acceptation  the 
term  law  is  applied  to  the  rule  or  principle  underlying 
and  controlling  a  sequence  of  events.  When  used  in  a 
political  sense,  and  with  reference  to  the  external  and 
internal  relations  of  states,  it  is  divided  into : 

(a.)  Municipal  Law — comprising  those  rules  of  con- 
duct which  are  sanctioned  by  a  state  and  imposed  by 
its  sovereign  power  upon  its  citizens  or  subjects.1 

1  In  their  desire  to  discriminate  between  law  and  morality  some 
English  writers  have  given  to  the  term  law  a  narrower  meaning  than 
is  usual  in  other  languages.  This  tendency  is  seen  in  their  frequent 
denial  of  the  existence  of  a  science  of  international  law;  a  denial 
based  upon  a  narrow  and  technical  definition  of  the  term  law  itself. 
From  their  point  of  view  a  law  is  not  entitled  to  that  name  unless  a 
superior  authority  be  conceived  to  exist,  powerful  enough  to  compel 
obedience  to  its  commands.  If  that  which  would  be  regarded  as 
law  by  this  restricted  definition  be  closely  examined,  it  will  be  seen 
that  its  right  to  the  title  is  by  no  means  clear.  As  most  modern 
states  are  now  organized  no  law  can  long  endure,  or  be  rigidly  en- 
forced, which  does  not  commend  itself  to  the  great  mass  of  citizens 
of  a  state.  So  soon  as  they  cease  to  regard  it  as  just,  or  even  expe- 
dient, its  enforcement  becomes  difficult  and  the  law  is  repealed,  or 
1 


2  OUTLINES  OF  INTERNATIONAL  LAW. 

(5.)  International  Law — comprising  the  aggregate 
of  rules  and  limitations  which  sovereign  states  agree 
to  observe  in  their  intercourse  and  relations  with  each 
other.  As  it  deals  with  the  relations  of  states  in  their 
sovereign  capacity,  it  is  sometimes  called  Public  Inter- 
national Law,  to  distinguish  it  from  that  branch  of  the 
science  which  has  to  do  with  the  relations  of  states  to 
the  citizens  or  subjects  of  other  states,  which  is  called 
Private  International  Law  •  or,  as  it  is  in  question 
whether  the  courts  of  a  state  shall  apply  their  own 
municipal  laws  or  those  of  another  state  in  the  deter- 
mination of  a  given  cause,  this  branch  of  the  subject 
has  sometimes  been  called  the  Conflict  of  Laws. 

2.  International  and  Municipal  Law  Compared. — 
The  essential  difference  between  the  two  systems  of 
law  will  be  found  to  consist  in  the  extent  and  character 
of  the  binding  force  of  each.  The  sovereign  authority 
of  a  state  sanctions  its  own  municipal  laws,  and,  within 
its  territorial  limits,  enforces  obedience  to  their  provis- 
ions. As  sovereign  states  acknowledge  no  common 
superior,  it  is  obvious  that  there  is  no  authority  above 
or  outside  a  state  which  can  effectively  coerce  it  into 
obedience  to  the  provisions  of  International  Law.  An 
individual  who  suffers  an  injury,  or  whose  personal  or 

becomes  a  dead  letter.  Municipal  laws,  therefore,  no  less  than  inter- 
national, in  the  last  resort,  depend  for  their  efficiency  upon  the  con- 
sent of  those  whose  conduct  is  to  be  regulated  by  them;  and  a 
law  which  all  nations  expressly  agree  to  observe,  or  tacitly  accept 
as  an  international  usage,  is  as  well  entitled  to  consideration  as  is  a 
provision  of  municipal  law  which  is  enacted  and  obeyed  because  a 
majority  of  citizens  believe  it  to  be  just  and  necessary.  It  is  not 
necessary  to  say  that  the  view  here  discussed  is  not  shared  by  the 
later  school  of  English  writers,  of  which  Professor  Sheldon  Arnos 
and  Sir  Henry  Sumner  Maine  are  the  able  representatives. 


DEFINITION  AND  HISTORY.  3 

property  rights  are  invaded,  seeks  and  obtains  redress 
in  the  courts  of  his  country,  which  are  authorized  to 
hear  and  decide  his  case,  and  are  given  power  to  en- 
force their  judgments  and  decrees.  If  a  nation  be 
injured  or  invaded  by  another,  or  have  a  cause  of  dif- 
ference with  a  foreign  state,  it  cannot  appeal  to  an 
international  tribunal  of  any  land  to  remedy  its  wrong 
or  to  adjust  its  difference,  but  must  seek  redress  by 
remonstrance  or  negotiation,  or,  as  a  last  resort,  by 
war,  when  all  peaceable  methods  of  adjustment  have 
failed. 

HISTORY  OF  THE  SCIENCE. 

3.  The  Oriental  Monarchies. — International  law  can 
hardly  be  said  to  have  existed  in  ancient  times.     The 
absolute  and  crudely  organized  Eastern  monarchies 
were  intolerant  of  the  very  existence  of  neighboring 
nations,  and  lived  in  a  state  of  constant  warfare  with 
them.     Of  distant  nations  they  knew  nothing,  and  as 
there  must  be  communication  or  intercourse  of  some 
kind  between  states  in  order  that  the  rules  may  be  de- 
duced which  shall  govern  their  relations  with  each 
other,  it  was  impossible  that  a  science  resembling  in- 
ternational law  could  have  existed  among  them. 

4.  The  Greeks  acknowledged  the  independent  exist- 
ence of  other  states,  both  within  and  without  the  Hel- 
lenic peninsula.     They  had  intercourse  with  them,  and 
sent  and  received  ambassadors  and  diplomatic  agents. 
The  pressure  of  circumstances  obliged  them,  at  times, 
to  enter  into  offensive  and  defensive  alliances  with  each 
other,  and  some  of  their  later  confederacies  were  highly 
organized  and  possessed  many  elements  of  permanency. 
All  foreigners,  however,  were  known  to  them,  as  barb*' 
rians ;  their  customs  in  war  were  extremely  cruel,  and 


4  OUTLINES  OF  INTERNATIONAL  LAW. 

breaches  of  faith  were  too  common  to  favor  the  growth 
of  a  science  which  depends  to  a  higher  degree  than  any- 
other  upon  the  sacred  observance  of  agreements  and 
promises. 

5.  The  Romans  differed  from  the  Greeks  in  that  their 
intercourse  with  foreign  nations  was  so  great  in  amount, 
and  so  diversified  in  character,  as  to  enable  their  jurists 
to  deduce  from  their  international  experience  a  crude 
set  of  rules  by  which  they  conceived  that  their  recipro- 
cal intercourse  with  other  states  was  governed.     This 
was  known  among  them  as  the  Jus  Feciale.     It  differs 
radically  from  the  modern  science  of  international  law, 
which  is  founded  upon  the  consent  of  nations  and  pre- 
supposes the  existence  of  many  independent  states,  and 
rather  expresses  the  imperfect  and  one-sided  views  of 
international  obligation  which  were  held  by  the  most 
powerful  state  of  the  ancient  world. 

6.  From  the  downfall  of  the  Western  Roman  Empire 
until  the  close  of  the  dark  ages  a  slow  but  gradual  de- 
velopment of  the  science  can  be  traced,  chiefly  in  the 
history  of  the  Mediterranean  cities,  which  maintained 
more  or  less  intimate  commercial  relations  with  each 
other  during  this  period.    Some  of  these  cities  had  sur- 
vived the  wreck  of  the  empire,  and  had  maintained 
their  corporate  existence  during  the  inroads  of  the 
Teutonic  invaders.     Others  had  been  founded  from 
time  to  time,  especially  during  the  period  of  revival  of 
civilization.    All  had  been  able  to  endure  the  evil  effects 
of  the  feudal  system  only  with  extreme  difficulty,  and 
it  was  not  until  those  effects  had  in  some  degree  passed 
away  that  the  elements  of  civilization,  which  had  been 
preserved  among  them,  began  to  increase,  and  to  exer- 
cise an  influence  upon  the  rude  society  by  which  they 


DEFINITION  AND  HISTORY.  5 

were  surrounded.  The  first  signs  of  a  revival  began  to 
appear  toward  the  close  of  the  dark  ages,  and  were 
manifested  in  the  marked  interest  shown  in  the  revival 
of  manufactures,  and  the  establishment  and  extension 
of  commercial  intercourse. 

7.  Effect  of  the  Revival  of  Commerce. — Commerce,  and 
especially  maritime  commerce,  cannot  long  be  carried 
on  without  its  participants  agreeing  upon  some  rules 
for  its  protection  and  regulation.     All  ships  engaged 
in  it  are  exposed  alike  to  the  depredations  of  pirates 
and  the  perils  of  the  sea.     The  necessity  of  policing 
harbors,  of  lighting  dangerous  coasts,  and  of  maintain- 
ing adequate  port  facilities  must  also  have  received 
early  attention.    As  the  cities  were  themselves  inde- 
pendent, or  were  situated  in  different  states  and  ac- 
knowledged no  common  superior,  such  rules,  to  have 
been  regarded  as  obligatory,  must  have  commended 
themselves  to  those  engaged  in  commercial  pursuits, 
must  have  existed  with  their  tacit  or  expressed  con- 
sent, and  their  binding  force  could  have  continued 
only  so  long  as  they  were  generally  regarded  as  just 
and  equitable. 

8.  Early  Codes  of  Maritime  Law. — Primitive  codes 
of  maritime  law,  fulfilling  most  of  these  conditions, 
and  so  possessing  some  of  the  characteristics  of  inter- 
national law,  are  found  to  exist  in  the  early  sea-laws 
of  the   commercial  cities  of   southern   and  western 
Europe.     The  most  important  of  these  were : 

(a.)  "The  Jugements  of  Oleron." — This  was  a  body  of 
regulations  governing  the  navigation  of  the  western 
seas,  and  is  believed  to  have  been  drawn  up  in  the 
eleventh  century.1  •  Its  authority  was  long  recognized 

1  Azuni,  "Maritime  Law,"  vol.  i.,  p.  379. 


6  OUTLINES  OF  INTERNATIONAL  LAW. 

in  most  of  the  Atlantic  ports  of  France,  and  for  this 
reason  portions  of  it  were  incorporated  in  the  Maritime 
Ordinances  of  Louis  XIY. 

(5.)  "  Tke  Consolato  del  Mare  ;"  or,  "  Customs  of  the 
Sea,"  was  a  more  extensive  collection  of  rules  appli- 
cable to  the  decision  of  questions  arising  in  commerce 
and  navigation,  both  in  peace  and  war.  It  also  con- 
tained rules  defining  the  rights  of  belligerents  and 
neutrals,  as  they  were  then  sanctioned  and  understood. 
It  was  probably  drawn  up  in  the  twelfth  century,  the 
earliest  authentic  copy  having  been  published  in  Bar- 
celona in  1474.  Its  authors  are  unknown,  but  their 
work  exhibits  a  thorough  knowledge  of  the  Eoman 
maritime  law,  of  the  early  maritime  customs  of  the 
commercial  cities  of  the  Mediterranean,  and  of  the 
principles  of  contract,  as  applied  to  trade  and  naviga- 
tion. Great  weight  was  attributed  to  the  work  by  the 
commission  to  whom  Louis  XIY.  intrusted  the  prepa- 
ration of  his  celebrated  Maritime  Ordinances.  Grotius 
speaks  of  the  "  Consolato  del  Mare  "  as  containing  the 
constitutions  of  France,  Spain,  Syria,  Cyprus,  the  Bale- 
aric Isles,  Venice,  and  Genoa.1  Its  provisions  on  the  sub- 
ject of  "  prize  law,  besides  the  concurrence  of  the  states 
above  named,  coincided  with  all  the  treaties  relating 
to  their  provisions  made  during  several  succeeding  cen- 
turies," a  and  "  they  agree  at  present  with  the  maritime 
code  of  Europe,  notwithstanding  many  attempts  to  re- 
vise their  regulations." s 

(c.)  "  The  Guidon  de  la  Mar "  is  a  work  of  more 
comprehensive  character  than  the  "Consolato  del 
Mare,"  and  is  of  considerably  later  date.  It  was  drawn 

1  Manning's  "Law  of  Nations,"  p.  15. 
*lbid.  3  Ibid. 


DEFINITION  AND   HISTORY.  7 

up  toward  the  close  of  the  sixteenth  century,  at  the 
supposed  instance  of  the  merchants  of  Rouen.  It 
treats  principally  of  the  law  of  maritime  insurance, 
the  laws  of  prize,  and  contains  a  code  of  regulations 
governing  the  issue  of  letters  of  marque  and  reprisal. 

Other  Codes  of  Maritime  Law. — The  "  Maritime  Law 
of  Wisbuy,"  the  "  Customs  of  Amsterdam,"  the  "  Laws 
of  Antwerp,"  and  the  "  Constitutions  of  the  Hanseatic 
League  "  are  names  applied  to  bodies  of  sea-laws  simi- 
lar to  those  already  described,  which  were  recognized 
in  the  cities  of  northwestern  Europe  on  the  North 
and  Baltic  seas. 

These  early  systems  had  some  elements  in  common. 
The  authorship  of  none  of  them  is  fully  known.  The 
best  opinion  is  that  they  were  drawn  up  by  commis- 
sions of  merchants  or  lawyers  representing  different 
cities,  thus  giving  them  in  some  degree  the  character 
of  commercial  treaties.  All  of  them  contain  provisions 
extracted  from  the  earliest-known  maritime  code,  the 
Rhodian  Laws,  which  were  incorporated  at  an  early 
date  into  the  general  body  of  Roman  Law,  and  were 
recognized  and  sanctioned  by  the  emperors  Tiberius 
and  Hadrian.  In  some  of  them  the  subjects  of  neu- 
trality and  neutral  rights  are  so  broadly  and  liberally 
treated  as  to  leave  but  little  room  for  improvement  in 
the  codes  of  more"  recent  times.  All  of  them  evince,  on 
the  part  of  their  authors,  a  familiarity  with  the  Civil 
Law,  and  each  in  turn  exercised  a  decided  influence  in 
the  preparation  of  those  which  followed  it. 

These  sea-laws,  however,  applied  to  but  one  phase  of 
international  relations — maritime  commerce — and  some 
of  them  had  been  in  existence  several  centuries  before 
the  intercourse  of  states  on  land  had  become  sufficiently 


8  OUTLINES  OF  INTERNATIONAL  LAW. 

general  to  make  it  possible  to  deduce  any  of  its  under- 
lying principles,  or  even  to  formulate  the  common 
usages  of  states  in  peace  or  war.  The  nations  of  Eu- 
rope during  the  period  between  the  fifth  and  fifteenth 
centuries  were  in  formative,  transition  state,  of  which 
little  detailed  history  remains.  General  causes  were 
at  work,  however,  some  of  which  tended  to  favor,  and 
some  to  retard,  the  growth  of  international  law.  Some 
of  these  were : 

9.  (a.)  The  Feudal  System. — As  a  system  of  land-ten- 
ure this  institution  is  of  great  antiquity ;  as  a  system 
of  government  in  Europe  it  dates  back  to  the  migra- 
tions of  the  Teutonic  tribes  into  western  and  south- 
western Europe,  which  were  in  progress  during  the 
period  between  the  third  and  sixth  centuries. 

"  The  German  nations  who  passed  the  Ehine  to  con- 
quer Gaul  were  in  a  great  degree  independent ;  their 
princes  had  no  other  title  to  their  power  but  their  valor 
and  the  free  election  of  the  people ;  and  as  the  latter 
had  acquired,  in  their  forests,  but  contracted  notions  of 
sovereign  authority,  they  followed  a  chief  less  in  qual- 
ity of  subjects  than  as  companions  in  conquest.  Be- 
sides, this  conquest  was  not  the  irruption  of  a  foreign 
army,  which  only  takes  possession  of  fortified  towns ; 
it  was  the  general  invasion  of  a  w^hole  people  in  search 
of  new  habitations ;  and,  as  the  number  of  the  con- 
querors bore  a  great  proportion  to  that  of  the  con- 
quered, who  were  at  the  same  time  enervated  by  long 
peace,  the  expedition  was  no  sooner  completed  than 
all  danger  was  at  an  end,  and  of  course  their  union 
also.  After  dividing  among  themselves  what  lands 
they  thought  proper  to  occupy,  they  separated,  and, 
though  their  tenure  was  at  first  only  precarious,  yet 


DEFINITION  AND  HISTORY.  9 

in  this  particular  they  depended,  not  on  the  king,  but 
on  the  general  assembly  of  the  nation. 

"  Under  the  kings  of  the  first  race  the  fiefs,  by  the 
mutual  connivance  of  the  leaders,  at  first  became  an- 
nual ;  afterwards  they  were  held  for  life.  Under  the 
descendants  of  Charlemagne  they  became  hereditary. 
And  when,  at  length,  Hugh  Capet  effected  his  own 
election,  to  the  prejudice  of  Charles  of  Lorraine,  in- 
tending to  render  the  crown,  which,  in  fact,  was  a  fief, 
hereditary  in  his  own  family,  he  established  the  hered- 
itaryship  of  fiefs  as  a  general  principle ;  and  from  this 
epoch  authors  date  the  complete  establishment  of  the 
feudal  system  in  France. 

"  On  the  other  hand,  the  lords  who  gave  their  suffrages 
to  Hugh  Capet  forgot  not  the  interest  of  their  own 
ambition.  They  completed  the  breach  of  those  feeble 
ties  which  subjected  them  to  the  royal  authority,  and 
became  everywhere  independent.  They  left  the  king 
no  jurisdiction,  either  over  themselves  or  their  vassals ; 
they  reserved  the  right  of  waging  war  with  each  other ; 
they  even  assumed  the  same  privilege,  in  certain  cases, 
with  regard  to  the  king  himself ;  so  that  if  Hugh  Capet, 
by  rendering  the  crown  hereditary,  laid  the  foundation 
of  the  greatness  of  his  family,  and  of  the  crown  itself, 
yet  he  added  little  to  his  own  authority,  and  acquired 
scarcely  anything  more  than  a  nominal  superiority 
over  the  number  of  sovereigns  who  then  swarmed  in 
France." '  This  system  of  government,  which  seems  to 
have  been  the  only  one  of  which  the  Teutonic  mind 
could  conceive,  was  carried  by  the  same  methods  into 


1  De  Lolme,  "The  Constitution  of  England,"  book  i.,  chap,  i., 
pp.  148,  149. 


10  OUTLINES  OF   INTERNATIONAL   LAW. 

Italy  and  Spain,  and  was  suddenly  introduced  into 
England  at  the  period  of  the  Norman  Conquest. 

The  system  culminated  when  the  modern  states  of 
Europe  began  to  assume  something  of  their  present 
form.  The  great  monarchies  could  only  grow  in  size 
and  strength  at  the  expense  of  the  power  and  posses- 
sions of  the  feudal  nobles,  and  so  soon  as  the  former 
were  securely  established  the  power  of  the  latter  began 
to  decline.  While  the  system  lasted  its  effects  were, 
on  the  whole,  unfavorable  to  the  growth  of  interna- 
tional law.  Europe  was  divided  into  a  large  number 
of  small  states,  or  groups  of  states,  ruled  by  dukes  and 
barons,  each  in  a  condition  of  constant  hostility  with 
his  neighbors.  Intercourse  was  always  difficult,  and 
at  times  impossible.  Commerce  by  land  could  not 
exist,  and  the  growth  of  towns  was  hampered  and 
restricted.  War  was  the  rule,  and  peace  the  excep- 
tion. The  rules  of  war  were  cruel  and  harsh  in  the 
extreme.  Quarter  was  rarely  given ;  the  garrisons  of 
besieged  towns  were  put  to  the  sword ;  prisoners  of 
war  were  reduced  to  slavery  ;  and  so  great  was  the 
mutual  distrust  of  sovereigns  that  they  maintained  but 
little  intercourse  with  each  other,  and  obtained  such 
information  as  they  desired  by  questionable  means — 
through  agents  or  spies. 

10.  (5.)  The  Institution  of  Chivalry. — This  came  into 
existence  during  the  feudal  period,  and  was  in  great 
part  an  outgrowth  of  the  Crusades.  It  contributed 
powerfully  to  ameliorate  some  phases  of  the  laws  of 
war.  Its  code  applied  at  first  only  to  the  conduct  of 
knights  towards  each  other ;  but,  in  so  far  as  it  recog- 
nized and  practised,  to  some  extent,  the  principles  of 
Christianity,  its  effects  were  soon  felt  in  the  milder 


DEFINITION  AND  HISTORY.  H 

treatment  of  captives  and  slaves,  and  in  the  different 
and  stricter  views  which,  began  to  prevail  in  the  matter 
of  keeping  faith  with  enemies  and  strangers.1 

11.  (c.)  The  Roman  Church.  —  Unquestionably  the 
most  powerful  influence  that  was  exerted  upon  the  sci- 
ence of  international  law  during  its  formative  period 
was  that  of  the  Koman  Church.  As  the  political  pow- 
er of  the  Western  Empire  decayed,  and  finally  dis- 
appeared, the  Church,  an  organization  having  at  once 
a  religious  and  a  secular  aspect,  became  for  a  time  the 
most  powerful  organ  of  civilization  in  that  portion 
of  "Western  Europe  which  had  formerly  acknowledged 
the  sway  of  the  Koman  emperors.  Its  authority  was 
generally  acknowledged  and  respected,  and  its  minis- 
ters and  bishops,  in  addition  to  their  sacred  functions, 
frequently  found  themselves  called  upon  to  perform 
duties  entirely  secular  in  character.  Out  of  this  state 
of  affairs  grew  the  Canon  Law,  a  code  based,  to  a  great 
extent,  upon  the  Roman  Law,  but  adapted  to  the  po- 
culiar  exigencies  of  the  Church  and  times.  While  in- 
tended primarily  as  a  constitution  for  the  government 
of  the  Church  and  the  administration  of  its  vast  inter- 
ests, its  provisions  were  found  to  be  applicable  to  the 
decision  of  a  great  variety  of  controversies,  ranging  in 
importance  from  the  disputes  of  private  individuals 
to  the  adjustment  of  difficulties  of  serious  international 
concern. 

It  is  a  tribute  to  the  profound  influence  of  the  Roman 
Empire  upon  the  minds  of  men  that  the  theory  of  uni- 
versal sovereignty  should  have  so  long  survived  its 

1  For  an  account  of  the  usages  of  war  in  the  Middle  Ages  see 
Ward's  "Inquiry  into  the  Law  of  Nations  before  Grotius;"  vol.  L, 
chap,  vi.-is. 


12  OUTLINES  OF  INTERNATIONAL  LAW. 

downfall,  and  that  it  should  have  been  deemed  neces- 
sary, in  the  Middle  Ages,  to  find  a  substitute  for  it  in 
existing  institutions.  Such  a  substitute  was  found  in 
the  empire  founded  by  Charlemagne,  but  with  an  im- 
portant modification.  The  temporal  head  of  Christen- 
dom was  the  German  emperor ;  its  spiritual  head  was 
the  Koman  pontiff ;  but,  as  the  line  of  division  was  not 
sharply  drawn,  these  personages  often  came  into  con- 
flict, and  "  the  international  law  of  the  Middle  Ages 
was  influenced  enormously  by  the  conflicting  claims  of 
the  pope  and  the  emperor." '  As  the  imperial  power, 
at  any  time,  depended  largely  upon  the  personal  influ- 
ence and  character  of  the  emperor,  and  as  no  line  of 
political  policy  was  long  adhered  to  by  them,  the  pa- 
pacy, having  a  determined  and  well-settled  policy,  in 
time  began  to  acquire  a  preponderance  even  in  tem- 
poral affairs. 

"  The  idea  of  a  common  superior  still  lingered  among 
the  nations,  and  greatly  assisted  the  Roman  pontiffs  in 
their  efforts  to  obtain  a  suzerainty  over  all  temporal 
sovereigns.  For  as  the  empire  founded  by  Charlemagne 
gradually  decreased  in  extent  till  it  scarcely  extended 
beyond  the  limits  of  Germany,  more  and  more  diffi- 
culty was  felt  in  ascribing  to  it  universal  dominion. 
Yet  no  one  dreamed  of  asserting  boldly  that  indepen- 
dent states  had  no  earthly  superior ;  and  therefore,  when 
the  papacy  came  forward  with  its  claims,  men's  minds 
were  predisposed  to  accept  them.  As  an  arbitrator 
between  states  the  pope  often  exercised  great  influence 
for  good.  In  an  age  of  force  he  introduced  into  the 
settlement  of  international  disputes  principles  of  hu- 

1  Lawrence,  "  Essays  on  Modern  International  Law,"  p.  149. 


DEFINITION  AND  HISTORY.  ^3 

inanity  and  justice,  and  had  the  Roman  Curia  always 
acted  upon  the  principles  which  it  invariably  professed, 
its  existence  as  a  great  court  of  international  appeal 
would  have  been  an  unmixed  benefit."  ' 

(Ecumenical  Councils. — "  The  assembly  of  deputed 
representatives  from  the  different  Christian  states  gave 
to  the  (Ecumenical  Councils  the  composition  of  a  sort  of 
European  congress.  Besides  the  settlement  of  articles 
of  faith,  and  the  deposition  or  excommunication  of 
princes,  determined  in  these  councils,  there  are  distinct 
examples  in  which  the  pope  was  made  referee  in  ques- 
tions of  international  controversy.  At  the  Council  of 
Lyons,  convened  by  Gregory  X.,  in  12 74,  the  inhab- 
itants of  Ancona  having  contested  the  right  of  the 
Venetians  to  levy  tolls,  and  exercise  other  rights  of 
exclusive  dominion  in  the  Adriatic,  the  question  was 
referred  to  the  pope  and  was  discussed.  Judgment 
was  given  that  the  inhabitants  of  Ancona  had  no 
grounds  for  their  complaints,  and  that  the  Venetians 
were  possessed  of  the  sovereignty  of  the  Adriatic. 
Xone  of  the  ambassadors  or  princes  present  at  the 
council  objected  to  the  decision,  and  the  judgment 
passed  without  any  protest  respecting  its  validity. 
Decisions  on  questions  were  given  by  the  pope  indi- 
vidually, unassisted  by  such  councils ;  as,  for  instance, 
when  the  Spaniards  were  pushing  their  discoveries  in 
the  West,  and  the  Portuguese  in  the  East,  these  nations 
referred  to  the  pope  for  limits,  in  case  their  exploring 
parties  should  claim  the  same  territories,  and  Alexan- 
der YI.  accordingly  gave  them,  in  his  well-known  bull, 
a  line  of  demarcation."  "  The  advantage  that  might 

1  Lawrence,  "Essays  on  Modern  International  Law,"  p.  149. 


14:  OUTLINES  OF  INTEKNATIONAL  LAW. 

have  been  derived  from  the  papal  interference  would 
have  been  very  great  had  it  been  an  authority  exer- 
cised for  justice,  instead  of  abused  for  ambition."  1 

12.  JRise  of  the  European  Monarchies. — During  the 
period  between  the  fourteenth  and  sixteenth  centuries, 
and  as  a  consequence  of  the  decline  of  the  feudal  no- 
bility, the  great  monarchies  of  Europe  began  to  acquire 
strength  and  consistency,  and  to  assume  something  of 
their  present  territorial  form.  These  governments 
were  absolute  in  character,  and  although  some  of  them 
were  at  times  administered  with  considerable  liberality, 
in  none  were  popular  rights  recognized,  and  none  were 
limited  by  representative  institutions.  Not  only  were 
they  absolute  in  form,  but  in  most  of  them  the  idea  of 
sovereignty  had  become  associated  with  the  person  of 
the  sovereign.  He  was  the  head  of  the  state ;  the  title 
to  its  territory  and  property  wras  vested  in  him,  and 
he  was  held  to  be  able  to  dispose  of  it  at  will.  Such 
restraints  as  were  established  upon  the  royal  power  had 
chiefly  to  do  with  internal  affairs,  and  rarely  extended 
to  his  foreign  relations.  Such  being  the  case,  diplo- 
matic relations  soon  became  common,  alliances  were 
entered  into,  agents  were  established  at  foreign  capi- 
tals, through  whom  information  was  obtained  as  to  the 
schemes  and  intentions  of  foreign  powers.  Embassies 
were  sent  and  received,  ambassadors  maintained,  and 
great  wars  were  undertaken.  Conquests  were  made, 
and  territory  changed  hands ;  sometimes  as  a  result  of 
war,  sometimes  after  the  manner  of  a  transfer  of  prop- 
erty among  private  individuals. 

1  Manning,  pp.  12  and  13,  citing  Selden,  "De  Dominio  Maris," 
i.,  c.  xvi. 


DEFINITION  AND  HISTORY.  15 

Such  intricate  and  important  international  relations 
could  not  long  exist  without  furnishing  precedents  of 
sufficient  value  to  be  cited  in  negotiation,  or  without 
some  practices  and  usages  acquiring,  by  frequent  repe- 
tition, or  common  consent,  the  binding  force  of  inter- 
national customs.  The  sea-laws  furnished  a  basis  upon 
which  to  erect  a  code  of  maritime  law ;  their  recent 
experience  in  war  and  negotiation  furnished  abundant 
materials  for  the  preparation  of  a  code  of  international 
usages,  and  the  Roman  Law  furnished  a  stock  of  legal 
maxims  and  principles  with  which  to  bind  the  whole 
fabric  together. 

13.  The  Influence  of  Grotius. — At  the  close  of  this 
period,  and  at  a  most  opportune  moment  in  the  history 
of  the  science,  there  appeared  the  first  authoritative 
treatise  upon  the  Law  of  Nations,  as  that  term  is  now 
understood.  It  was  prepared  by  Hugo  Grotius,  a 
native  of  Delft,  in  Holland.  He  was  a  man  of  great 
learning,  of  considerable  experience  in  public  affairs, 
and  a  profound  student  of  the  Roman  Law;  and  his 
treatise,  which  was  published  early  in  the  seventeenth 
century,1  is,  in  substance,  an  application  of  its  princi- 
ples to  the  external  relations  of  states.  It  was  at  once 
perceived  to  be  a  work  of  standard  and  permanent 
value,  of  the  first  authority  upon  the  subject  of  which 
it  treats.  General  Halleck  justly  observes  with  refer- 
ence to  it  that  it  "  has  been  translated  into  all  lan- 
guages, and  has  elicited  the  admiration  of  all  nations 
and  of  all  succeeding  ages.  Its  author  is  universally 
regarded  as  the  great  master-builder  of  the  science  of 
International  Jurisprudence." a 

1 1625.  *  Halleck,  vol.  I,  p.  12. 


16  OUTLINES  OF  INTERNATIONAL  LAW. 

Great  as  were  the  inherent  merits  of  Grotius's  work, 
it  could  never  have  exercised  so  decisive  an  influence 
upon  state  affairs  as  it  did,  had  it  not  appeared  at  a 
time  when  the  existing  political  conditions  were  espe- 
cially favorable  for  its  reception.  The  Thirty  Years' 
War,  then  drawing  to  a  close,  had  been  marked  during 
its  entire  course  by  a  refinement  of  barbarous  cruelty, 
and  by  acts  of  atrocity  perpetrated  upon  the  unarmed 
and  unoffending  inhabitants  of  the  valley  of  the  Rhine 
which  stand  without  a  parallel  in  the  history  of  an- 
cient or  modern  war.  Many  of  the  military  operations 
had  been  undertaken  rather  with  a  view  to  the  chance 
of  pillage  than  from  a  desire  to  injure  or  defeat  the 
enemy.  Population  had  diminished,  great  tracts  of 
territory  had  been  laid  waste,  and  commerce  and  man- 
ufactures had  well-nigh  disappeared.  With  an  experi- 
ence of  the  horrors  of  war  so  bitter  and  long  continued 
as  that  which  Europe  was  even  then  undergoing,  it  is  not 
remarkable  that  men  should  have  been  willing  to  listen 
to  any  scheme  which  promised  to  mitigate  the  severity 
of  war,  or  to  lighten,  in  any  degree,  its  terrible  burdens. 
But,  great  as  the  losses  had  been  in  men  and  material 
wealth,  it  may  be  doubted  whether  a  desire  to  amelio- 
rate the  existing  usages  of  war  would  have  been,  of  it- 
self, an  agency  sufficiently  potent  to  bring  about  a  re- 
form of  International  Law,  had  not  another  and  a  more 
powerful  factor  contributed  directly  to  the  same  end. 

During  the  continuance  of  the  Thirty  Years'  War 
the  composition  of  the  belligerent  states  and  the  pur- 
poses for  which  the  war  was  carried  on  had  undergone 
a  complete  change.  The  contest  had  originated  in  an 
attempt  of  the  Protestant  princes  to  achieve  their  po- 
litical and  religious  independence.  In  its  later  stages 


DEFINITION  AND  HISTORY.  -^ 

it  had  been  transformed  into  a  struggle  for  preponder- 
ance between  France  and  Austria,  and  it  had  termi- 
nated, in  1648,  to  the  complete  advantage  of  the  former 
power.  In  the  course  of  the  war  the  old  idea  of  papal 
and  imperial  supremacy  had  finally  disappeared.  The 
ancient  standard  of  international  obligation  had  ceased 
to  exist,  and  a  newer  and  more  enduring  standard  had 
to  be  erected  in  its  place.  As  the  idea  of  a  common 
earthly  superior  was  no  longer  recognized,  it  became 
necessary  to  invent  a  theory  which,  while  conforming 
to  existing  political  conditions,  should  furnish  a  safe  and 
practicable  rule  for  the  conduct  of  interstate  relations. 

Such  a  scheme  was  that  proposed  by  Grotius.  "  His 
International  Law  had  two  sources — the  Law  of  Nature 
and  the  consent  of  all  or  most  nations ;  but  the  latter 
is  only  supplementary  to  the  former,  and  cannot  or- 
dain anything  contrary  to  it." l  The  Law  of  Nature, 
which  is  but  another  name  for  the  Jus  Gentium  of  the 
Koman  Law,  furnished  the  legal  basis  for  Grotius's 
work,  and  from  it  he  derived  his  fundamental  idea  of 
the  equality  and  independence  of  sovereign  states. 
States,  like  men,  were,  from  his  point  of  view,  controlled 
in  their  actions  and  relations  by  the  operation  of  a  law 
of  nature  as  ancient  as  the  universe  itself.  This  law 
could  be  added  to,  but  not  modified.  He  believed  it 
to  constitute  a  standard  by  which  the  conduct  of  states 
and  the  actions  of  individuals  could  be  finally  judged ; 
and  he  imagined  that  the  Eoman  Law  afforded  an 
historical  example  of  its  successful  application  in  inter- 
national affairs. 

"We  now  know  that  Grotius's  theory  of  international 


1  Lawrence,  "  Essays  on  Modern  International  Law,"  p.  179. 

2 


18  OUTLINES  OF  INTERNATIONAL  LAW. 

obligation  was  in  the  main  correct,  however  erroneous 
may  have  been  his  conception  of  its  origin  and  sanc- 
tion; and  it  is  a  remarkable  tribute  to  the  intrinsic 
excellence  of  his  work  that  it  has  endured  so  success- 
fully, for  more  than  two  centuries  and  a  half,  the  as- 
saults of  destructive  criticism  and  the  crucial  test  of 
practical  experience.  Xone  of  the  many  ingenious 
theories  which  have  been  advanced  in  opposition  to 
his  have  received  even  transient  recognition,  and  upon 
the  foundations  so  deeply  and  solidly  laid  by  its  im- 
mortal founder  the  fabric  of  the  science  securely  rests. 

14.  THE  SOURCES  OF  INTERNATIONAL  LAW. 

(a.}  Treaties  and  Conventions. — As  International  Law 
derives  its  binding  force  from  the  consent  of  nations, 
and  as  treaties  are  compacts,  freely  entered  into,  de- 
scribing the  conditions  and  defining  the  limitations 
which  nations  agree  to  observe  in  their  intercourse 
with  each  other,  it  follows  that  they  are  of  the  highest 
authority  in  determining  what  that  law  is  upon  any 
point  covered  by  their  stipulations.  For  example, 
many  naturalization  treaties  stipulate  for  a  period  of 
residence,  usually  five  years  in  length,  as  a  condition 
preliminary  to  naturalization.  This  warrants  the  in- 
ference that  a  period  of  residence  is  a  necessary  pre- 
liminary to  a  change  of  national  allegiance.  Other 
treaties  provide  that  consuls  may,  under  certain  cir- 
cumstances, perform  judicial  acts  in  foreign  ports.  This 
warrants  the  inference  that  no  such  exercise  of  consular 
jurisdiction  is  legal  unless  authorized  by  treaty  stipu- 
lations. 

(£.)  The  Judgments  of  International  Courts,  or  Boards 
of  Arbitration. — These  tribunals  are  created  for  the 


DEFINITION  AND  HISTORY.  19 

express  purpose  of  adjusting  international  disputes  and 
differences.  Their  judgments,  therefore,  should  con- 
stitute precedents  as  binding  upon  sovereign  states  as 
are  the  decisions  of  municipal  courts  upon  individuals 
who  carry  their  difficulties  to  them  for  adjustment. 

(c.)  The  Diplomatic  Correspondence  of  States,  and 
other  State  Papers,  upon  Subjects  Connected  with  For- 
eign Relations. — This  is  a  valuable  source  of  informa- 
tion upon  all  questions  connected  with  the  law  and 
usages  of  nations.  The  opinions  of  law  officers  and 
attorneys-general  to  their  respective  governments,  the 
correspondence  of  a  state  with  foreign  powers,  and  the 
reports  of  "commissions  created  for  the  purpose  of  ob- 
taining and  digesting  information  upon  special  sub- 
jects, are  examples  of  this  class.  Unfortunately  much 
correspondence  between  governments  is  still  regarded 
as  confidential,  and  so  is  not  easily  accessible.  Eng- 
land and  the  United  States,  however,  publish  at  inter- 
vals the  greater  part  of  their  correspondence  with  for- 
eign powers. 

(d.~)  The  Roman  Law. — This  is  the  earliest,  as  it  is  in 
many  respects  the  most  complete  and  elaborate  code 
of  law  that  has  ever  existed.  Most  of  the  codes  of 
municipal  law  now  in  force  among  the  Continental 
states  of  Europe  are  either  directly  based  upon  it,  or 
derive  from  it  the  greater  part  of  the  legal  principles 
which  they  contain.  As  it  was  the  only  system  of  law 
with  which  the  earlier  writers  on  International  Law 
were  familiar,  and  as  its  principles  seemed  to  be  suffi- 
ciently general,  in  character  and  scope,  to  apply  to  the 
reciprocal  relations  of  states,  its  authority  was  fre- 
quently invoked  by  them  in  the  preparation  of  their 
treatises. 


20  OUTLINES  OF  INTERNATIONAL  LAW. 

The  earliest  form  of  the  Roman  Law,  of  which  we 
have  any  authentic  knowledge,  is  that  contained  in  the 
Code  of  the  Twelve  Tables.  Like  all  ancient  legal  sys- 
tems, it  was  a  development  of  the  governmental  expe- 
rience of  the  Roman  people,  to  whom  its  provisions 
exclusively  applied.  Such  aliens  and  strangers  as  were 
resident  in  the  city  were,  at  first,  without  legal  rights 
or  privileges,  and  so  long  as  Roman  citizenship  main- 
tained its  peculiar  character  of  exclusiveness  the  sanc- 
tions and  penalties  of  the  Civil  Law  were  held  to  be 
binding  upon  Roman  citizens  alone. 

As  the  alien  class  increased  in  numbers,  as  well  as 
in  wealth  and  importance,  it  became  necessary  to  give 
to  its  members  a  definite  legal  status,  and  to  secure  to 
them  some  measure  of  protection  in  their  persons  and 
property.  "  The  expedient  to  which  they  resorted  was 
that  of  selecting  the  rules  of  law  common  to  Rome 
and  to  the  different  Italian  commonwealths  in  which 
the  immigrants  were  born.  In  other  words,  they  set 
themselves  to  form  a  system  answering  to  the  primi- 
tive and  literal  meaning  of  Jus  Gentium,  that  is,  law 
common  to  all  nations.  The  Jus  Gentium  was,  in  fact, 
the  sum  of  the  common  ingredients  in  the  customs  of 
the  old  Italian  tribes,  for  they  were  all  the  nations 
whom  the  Romans  had  any  means  of  observing,  and 
who  sent  successive  swarms  of  immigrants  to  Roman 
soil.  Whenever  a  particular  usage  was  seen  to  be 
practised  by  a  large  number  of  separate  races  in  com- 
mon, it  was  set  down  as  part  of  the  law  common  to  all 
nations,  or  Jus  Gentium."  1 

"  It  is  almost  unnecessary  to  add  that  the  confusion 

1  Maine,  "  Ancient  Law,"  p.  47. 


DEFINITION  AND  HISTORY.  21 

between  Jus  Gentium,  or  law  common  to  all  nations, 
and  International  Laio,  is  entirely  modern.  The  clas- 
sical expression  for  International  Law  is  Jus  Feciale, 
or  the  law  of  negotiation  and  diplomacy."  '  "  No  pas- 
sage," says  Sir  Henry  Maine,  in  his  "  Ancient  Law," 
"  has  ever  been  adduced  from  the  remains  of  Roman 
Law  which,  in  my  judgment,  proves  the  jurisconsults 
to  have  believed  Natural  Law  to  have  obligatory  force 
between  independent  commonwealths ;  and  we  cannot 
but  see  that  to  the  citizens  of  the  Eoman  Empire,  who 
regarded  their  sovereign's  dominions  as  conterminous 
with  civilization,  the  equal  subjection  of  states  to 
the  Law  of  Nature,  if  contemplated  at  all,  must  have 
seemed  at  most  an  extreme  result  of  curious  specula- 
tion. The  early  modern  interpreters  of  the  Jurispru- 
dence of  Rome,  misconceiving  the  meaning  of  the  Jus 
Gentium,  assumed  without  hesitation  that  the  Romans 
had  bequeathed  to  them  a  system  of  rules  for  the  ad- 
justment of  international  transactions."2  It  is  not 
necessary  to  suppose,  however,  that  Grotius  was  mis- 
taken, either  in  his  view  of  the  Roman  Law,  or  in  his 
application  of  its  principles  to  states  in  their  interna- 
tional relations.  That  system  was  the  outgrowth  of 
long  experience,  and  its  methods  of  dealing  with  the 
legal  relations  of  individuals  were  elaborated  with 
great  care.  From  the  standpoint  of  the  Civil  Law  the 
Roman  landowner  was  regarded  as  an  independent 
proprietor  within  the  boundaries  of  his  landed  estate. 
It  provided  elaborate  and  adequate  remedies,  which 
were  applied  whenever  his  personal  or  property  rights 
were  trespassed  upon  or  invaded,  and  it  regarded  all 

1  Maine,  "  Ancient  Law,"  p.  47.          *  Ibid.  p.  50;  Morey,  p.  207. 


22  OUTLINES  OF  INTERNATIONAL  LAW. 

citizens  as  equal  before  the  law.  Grotius,  in  his  great 
work,  but  applied  these  principles  to  sovereign  states. 
Each  state,  according  to  his  view,  was  independent 
within  its  territorial  limits,  and  all  states  were  equal 
in  dignity  and  in  the  number  of  sovereign  rights  which 
they  enjoyed,  however  unequal  they  may  have  been  in 
power  and  influence. 

These  principles  lie  at  the  foundation  of  modern  In- 
ternational Law,  and  such  of  its  doctrines  as  have  re- 
ceived general  sanction  are  based  directly  upon  them. 
It  was  thus  easy  for  Grotius  and  his  successors  to  de- 
duce from  the  Koman  Law  by  far  the  greater  part  of 
the  system  of  International  Law  as  it  exists  to-day.  In 
its  fundamental  principles  it  has  changed  but  little 
since  Grotius's  day.  In  its  detailed  rules  it  is  under- 
going a  slow  but  constant  modification ;  the  tendency 
being  toward  greater  liberality  of  view  in  the  treat- 
ment of  new  questions  as  they  arise,  and  in  the  modi- 
fication or  amendment  of  old  practices,  to  adapt  them 
to  the  conditions  imposed  by  modern  civilization.  Like 
Municipal  Law,  it  keeps  pace  with  the  development  of 
the  human  race;  it  is  affected  by  that  development, 
and,  in  turn,  reacts  upon  it,  influencing  the  current  of 
human  events  to  a  remarkable  degree. 

(e.)  The  Works  of  Text  Writers. — The  writings  of 
those  who  have  made  the  history  and  development  of 
international  usages  a  subject  of  special  study  will  al- 
ways constitute  our  chief  source  of  knowledge  upon 
the  subject.  The  earlier  writers  were  roughly  grouped 
into  two  schools.  One,  made  up  chiefly  of  Continental 
authors,  whose  works  were  largely  based  upon  the  Ko- 
man Law,  and  by  whom  great  authority  was  attached 
to  the  views  of  text  writers.  The  other,  composed  of 


DEFINITION  AND  HISTORY.  23 

English  and  American  writers,  whose  works,  strongly 
influenced  by  the  Common  Law  of  England,  attach  the 
greatest  weight  to  the  decisions  of  competent  courts 
and  to  the  precedents  established  by  the  usages  of  na- 
tions and  recognized  by  them  as  binding  in  their  inter- 
course with  each  other.  The  present  tendency  is  to 
obliterate  this  distinction.  The  history  of  both  the 
Roman  and  Common  Law  has  been  exhaustively  stud- 
ied, and  is  now  generally  known,  and  the  historical 
method  of  treatment  is  found  to  be  as  successful  in  its 
application  to  International  as  to  Municipal  Law. 

A  decided  unanimity  of  opinion  among  authors  as 
to  the  reason  or  justice  of  a  particular  usage  is  strong 
evidence  of  its  general  acceptance  as  a  rule  of  Interna- 
tional Law.  "  "Writers  on  International  Law,  however, 
cannot  make  the  law.  To  be  binding,  the  law  must 
have  received  the  assent  of  the  nations  who  are  to  be 
bound  by  it." ' 

The  Decisions  of  Municipal  Courts  upon  Questions 
of  International  Law. — Although  the  courts  of  a  state 
have  chiefly  to  do  with  the  decision  of  questions  aris- 
ing under  its  own  municipal  law,  they  are  sometimes 
called  upon  to  recognize  and  apply  the  rules  of  Inter- 
national Law  in  the  decision  of  particular  cases.  This  is 
found  to  be  necessary  when  the  national  character  of 
an  individual  is  drawn  in  question,  or  his  capacity  to 
perform  certain  acts ;  as  to  make  contracts  or  to  hold 
or  transfer  property.  In  the  decision  of  what  are  called 
Prize  cases,  which  is  usually  an  incident  of  the  juris- 
diction of  Admiralty  Courts,  the  law  administered  is 
almost  exclusively  international.  The  decisions  upon 

1  Justice  Cockburn,  in  R.  vs.  Keyn;  Stephens,  "History  of  the 
Criminal  Law,"  vol.  ii.,  p.  41. 


24  OUTLINES  OF  INTERNATIONAL  LAW. 

questions  of  International  Law  which  have  been  ren- 
dered by  Marshall  and  Story  in  the  United  States,  and 
by  Lord  Stowell,  Sir  Robert  Phillimore,  and  Dr.  Lush- 
ington  in  England,  are  of  the  highest  authority,  and 
have  been  repeatedly  cited  as  precedents  in  negotia- 
tion. 

(f.)  The  Municipal  Law  of  States. — Much  informa- 
tion may  be  derived  from  this  source  upon  questions 
having  at  once  a  municipal  and  an  international  phase. 
Such  is  the  case  with  the  subjects  of  citizenship  and 
naturalization;  of  neutrality,  extradition,  and  piracy. 
The  army  and  navy  regulations  of  different  states,  and 
the  rules  adopted  by  them  for  the  guidance  of  their 
diplomatic  and  consular  representatives,  throw  light 
upon  many  questions  of  international  usage. 

(ff.)  General  Histories,  the  Histories  of  Important 
Epochs,  and  the  Biographies  of  Eminent  Statesmen. — 
From  this  source  much  information  may  be  obtained 
as  to  the  history  of  the  wars,  negotiations,  and  treaties 
which  have  exercised  a  great,  and  sometimes  decisive, 
influence  upon  the  mutual  relations  of  states  and  upon 
the  development  of  the  science  of  International  Law, 
and,  finally, 

(h.}  The  Divine  Law. — The  highest  standard  of  eth- 
ics and  morals,  and  the  surest  guide  of  conduct  in  the 
affairs  of  individuals  and  states. 

15.  Divisions  of  International  Law. — The  rules  of 
International  Law  are  susceptible  of  reference  to  one 
or  both  of  two  sources : 

(a.)  Those  deduced  from  relations  based  upon  eth- 
ical or  moral  principles.  To  this  class  belong  good 
faith,  humanity,  and  comity,  the  faithful  observance 
of  treaties  and  agreements. 


DEFINITION  AND  HISTORY.  25 

(5.)  Those  deduced  from  usage  or  agreement,  and 
so  based  upon  the  consent  of  nations. 

Hence  International  Law  is  divided  into : 

(1.)  The  Natural  Law  of  Nations. — As  men  living 
together  in  communities  are  guided  in  their  actions 
and  relations  by  well-known  moral  laws,  so  nations, 
which  are  but  societies,  or  aggregates,  of  men,  and 
the  individuals  who  control  and  represent  them,  are 
guided  in  their  actions  by  the  same  moral  rules.  From 
this  body  of  ethical  principles,  governing  alike  indi- 
viduals and  nations,  is  deduced  the  natural  law  of 
nations. 

The  code  of  Christian  ethics  contained  in  the  New 
Testament  serves  at  once  as  a  rule  of  conduct  in  inter- 
national relations,  and  as  a  standard  by  which  that 
conduct  can  be  judged,  and  its  inherent  rightfulness 
or  wrongfulness  determined. 

(2.)  The  Positive  Law  of  Nations. — "  As  between  na- 
tion and  nation  there  are  no  laws  properly  so  called, 
though  there  are  certain  established  usages  of  which 
the  evidence  is  to  be  found  in  the  writings  of  persons 
who  give  the  relations  which  have  prevailed  between 
nation  and  nation." '  That  body  of  usages  which  is 
deduced  from  the  history  of  international  relations  is 
called  the  Positive  Law  of  Nations.  This  branch  of 
the  subject  is  sometimes  divided  into — 

(a.)  The  Customary  Law  of  Nations,  including  those 
rules  which  are  deduced  from  usage  and  precedent. 

(&.)  The  Conventional  Law  of  Nations,  including  those 
rules  which  are  based  upon,  or  deduced  from,  the  con- 

1  Stephens,  "History  of  the  Criminal  Law  of  England,"  vol.  i., 
pp.  88,  34. 


26  OUTLINES   OF  INTERNATIONAL  LAW. 

sent  of  states  as  expressed  in  the  treaties  and  conven- 
tions entered  into  by  them. 

16.  Parties  to  International  Law. — The  parties  to 
International  Law  are  sovereign  states.  In  the  fullest 
acceptation  of  the  term  it  prevails  only  among  the 
Christian  states  of  Europe  and  those  originally  colo- 
nized by  them  in  America  and  elsewhere.  This  is  due 
to  the  fact  that  these  states  have  had  a  common  his- 
torical development,  and  recognize  the  same,  or  nearly 
toe  same,  standards  of  law  and  morals.  The  area  over 
which  it  operates,  however,  is  slowly  extending.  Tur- 
key became  a  party  to  it  in  1856,  and  it  is  steadily 
gaining  recognition  in  China,  Japan,  and  other  Asiatic 
states,  though  its  acceptance  in  those  countries  can 
never  be  so  complete  as  in  the  western  nations  of  Eu- 
rope and  America. 

References. — The  history  of  the  science  of  International  Law  has 
been  made  the  subject  of  treatment  by  many  writers,  both  Eng- 
lish and  Continental.  The  earliest  English  work  upon  this  sub- 
ject is  that  of  Ward,  whose  "  Enquiry  into  the  Foundation  and 
History  of  the  Law  of  Nations  in  Europe"  appeared  in  1795. 
Wheaton's  "  History  of  the  Law  of  Nations "  is  the  fullest,  and 
in  many  respects  the  most  satisfactory,  work  of  the  kind  in  the 
English  language.  To  a  certain  extent  "Ward  and  Wheaton  sup- 
plement each  other.  The  legal  and  historical  works  of  Hallam, 
Freeman,  Stephens,  Amos,  and  Maine  in  English,  and  of  Mornmsen, 
Ranke,  and  Ihne  in  German,  have  contributed  to  throw  much  light 
upon  the  history  of  society  and  institutions,  and  it  is  impossible 
to  understand  the  development  of  International  Law  without  some 
knowledge  of  the  historical  development  of  the  states  and  socie- 
ties of  whose  relations  with  each  other  International  Law  is  but 
the  record.  Most  works  upon  the  Law  of  Nations  contain,  in  their 
introductory  chapters,  more  or  less  full  accounts  of  the  history  of 
the  science.  Among  them  may  be  mentioned  those  contained  in 
Halleck,  chaps.  1, 2 ;  G.  F.  De  Martens,  §§  1-15 ;  Philliniore,  Intro- 


DEFINITION  AND  HISTORY.  27 

duction  and  chaps.  3-9;  Heffter,  §§  1-13;  Hall,  Introduction  and 
p.  2,  note ;  and  Laurent, "  fitudes  sur  1'Histoire  de  FHumanitg,"  liv. 
ii.,  chaps.  1-3 ;  liv.  iii.,  chaps.  1-4 ;  liv.  iv.,  chaps.  1,  2.  The  pro- 
found influence  exerted  by  the  Roman  Law  upon  the  development 
of  the  science  is  now  fully  appreciated.  For  a  discussion  of  the 
question,  see  Maine,  "  Ancient  Law,"  pp.  92-108 ;  Amos, "  Science 
of  Law,"  pp.  332-341 ;  Morey, "  Outlines  of  Roman  Law,"  pp.  207- 
214. 

General  Bibliography  of  the  Subject  of  International  Law. — For 
a  full  bibliography  of  the  subject  of  International  Law,  see  G.  F. 
De  Martens,  "  Precis  du  Droit  de  Gens,"  pp.  357-441 ;  Kliiber, 
"Droit  de  Gens,"  pp.  419-468.  For  a  similar  work  in  English, 
see  Woolsey's  "  International  Law,"  appendix  I,  pp.  413-429. 


CHAPTER  II. 

STATES   AND   THEIR   ESSENTIAL   ATTRIBUTES. 

1.  A  state  is  a  society  of  persons  having  a  perma- 
nent political  organization,  and  exercising  within  a 
certain  territory  the  usual  functions  of  government. 

The  terms  state  and  nation  are  by  no  means  synon- 
ymous. The  latter  involves  the  idea  of  a  community 
of  race,  the  former  is  applied  to  a  society  of  men  or- 
ganized under  some  form  of  government  and  occupy- 
ing a  fixed  territory.  A  nation  may  furnish  a  contin- 
gent of  population  to  several  states.  There  is  a  Polish 
population  in  Austria,  Eussia,  and  Prussia ;  a  German 
population  in  Prussia  and  Austria ;  on  the  other  hand, 
the  Russian  and  Ottoman  empires  include  several  dis- 
tinct nationalities.  As  applied  to  societies  of  men,  the 
term  state  represents  an  artificial,  the  term  nation  a 
natural,  division.  In  recent  times  the  tendency  to 
reorganize  states  upon  a  national  basis  has  been  very 
marked.  The  movements  within  the  present  century 
which  have  resulted  in  quite  a  large  measure  of  na- 
tional unity  in  Germany  and  Italy  are  illustrations  of 
this  tendency. 

2.  Sovereignty  of  a  State. — The  sovereignty  of  a  state 
is  its  inherent  right  to  exercise  jurisdiction  over  all 
questions  arising  within  its  territorial  limits,  and  to 
control  and  regulate  the  actions  and  relations  of  all  its 
citizens  or  subjects. 

3.  Government  of  a  State. — The  government  of  a 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          29 

state  is  the  organ  through  which  its  sovereign  powers 
are  exercised,  and  through  which  it  maintains  inter- 
course with  other  states.  A  constitutional  govern- 
ment is  one  in  which  the  powers  of  sovereignty  are 
defined  and  limited  in  accordance  with  the  principles 
of  a  fundamental  law  called  a  constitution.  ISTone  of 
the  modern  Christian  states  that  acknowledge  the  sanc- 
tions of  International  Law  can  be  said  to  be  absolutely 
without  a  constitution  of  some  sort.  There  may  be  no 
substantial  guarantees  of  individual  right  or  of  per- 
sonal freedom ;  indeed,  such  rights  may  not  exist,  or 
may  be  restricted  within  very  narrow  limits.  It  may 
be  a  formal  written  instrument,  as  in  the  United  States ; 
it  may  be  in  great  part  unwritten^  as  is  the  case  of  the 
British  constitution ;  or,  as  in  many  Continental  states 
of  Europe,  it  may  be  embodied  in  the  municipal  law, 
from  which  those  principles  which  are  of  a  fundamen- 
tal character  may  be  deduced  and  determined.  In 
some  form  it  must  exist.  Without  such  a  body  of 
fundamental  principles  no  modern  government  could 
be  carried  on. 

4.  Classification  of  Governments. — Governments  are 
classified  according  to  the  source  of  sovereign  power, 
or  the  manner  in  which  it  is  exercised  in  each. 

A  monarchy  is  a  government  in  which  the  sovereign 
powers  are  concentrated  in  a  single  person.  An  abso- 
lute monarchy  is  one  in  which  the  concentration  of 
sovereign  powers  is  real.  A  limited  monarchy  is  one 
in  which  the  royal  authority  is  restricted  in  its  exer- 
cise, usually  by  representative  institutions  of  some 
kind.  These  restrictions  may  be  so  extensive  in  char- 
acter as  to  reduce  the  sovereign  to  the  condition  of  an 
hereditary  executive.  This  is  the  case  in  England. 


30  OUTLINES  OF  INTERNATIONAL  LAW. 

An  Aristocracy  is  a  government  in  which  the  sov- 
ereign powers  are  held  to  reside  in  a  class.  If  the 
ruling  class  constitutes  a  small  proportion  of  the 
population  the  resulting  government  is  called  an  oli- 
garchy. 

A  Democracy  is  a  government  in  which  the  sovereign 
powers  are  held  to  reside  in  all  the  people,  and  are  ex- 
ercised by  them  directly. 

A  Republic,  or,  as  it  is  sometimes  called,  a  Demo- 
cratic Republic,  is  a  government  in  which  the  sovereign 
power  resides  in  the  people,  but  is  exercised  by  repre- 
sentatives elected  by  them  for  that  purpose. 

Classification  of  the  Sovereign  Powers, — The  powers 
of  sovereignty  are  susceptible  of  classification,  and  are 
usually  arranged  under  three  heads — executive,  legis- 
lative, and  judicial.  The  amount  of  influence  and  the 
degree  of  independence  possessed  by  each  department 
depends,  in  any  particular  case,  upon  the  constitution 
of  the  state.  It  can  only  be  said  that  the  distribution 
of  powers  varies  greatly  in  different  states,  no  two  ex- 
actly resembling  each  other  in  this  respect.1 

5.  Governments  are  again  classified,  according  to 
the  opinion  or  belief  of  the  person  using  the  term,  into 
governments  de  facto  and  de  jure.  A  de  facto  govern- 
ment is  one  actually  existing  in  a  state,  and  for  the 
time  possessing  sufficient  strength  to  exercise  sovereign 
powers.  Thus  the  de  facto  government  in  France,  in 
1792,  was  that  carried  on  by  the  National  Convention. 
A  de  jure  government  is  one  which  the  person  using 

1  The  most  successful  modern  experiments  in  government,  how- 
ever, have  been  those  in  which  these  departments  exist,  and  are 
constituted  in  such  a  manner  that  each  acts  as  a  check  upon  the 
povjer  and  jurisdiction  of  the  others. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          31 

the  term  believes  to  be  the  rightful  government  of  the 
state.  It  may  or  may  not  be  in  enjoyment  of  the 
power  of  sovereignty.  Thus,  in  1792,  Austria  regard- 
ed the  government  of  Louis  XVI.  as  the  de  jure  gov- 
ernment of  France.  From  the  standpoint  of  Interna- 
tional Law  the  term  government  is  usually  applied 
to  the  de  facto  government  of  a  state,  and  such  gov- 
ernments are  generally  recognized  in  fact,  if  not  in 
name. 

6.  The  Essential  Attributes  of  Sovereignty. — The  at- 
tributes which  are  essential  to  the  conception  of  a  sov- 
ereign state  are  three  in  number — Sovereignty,  Inde- 
pendence, and  Equality. 

The  term  Sovereignty  has  already  been  defined.  It 
is  the  inherent  right  of  a  state  to  exercise  jurisdiction 
over  all  questions  arising  within  its  territorial  limits, 
and  to  control  and  regulate  the  actions  and  relations 
of  all  its  citizens  or  subjects. 

The  conception  of  Independence  is  included  in  that 
of  sovereignty.  It  involves  an  immunity  from  all 
interference  in  the  internal  affairs  of  a  state,  and  a 
corresponding  obligation  to  abstain  from  interfering  in 
the  internal  concerns  of  other  sovereign  states. 

It  has  been  seen  that  a  state  possesses  a  certain  num- 
ber of  sovereign  rights  and  powers.  These  rights  are 
possessed  in  precisely  the  same  number  and  to  the  same 
degree  by  every  sovereign  state.  This  is  called  the 
Equality  of  States.  It  is  not  to  be  inferred  from  this 
definition  that  all  states  are  equal  in  dignity,  impor- 
tance, or  power.  It  is  only  asserted  that  each  state 
possesses  the  same  number  of  sovereign  rights  and 
powers,  and  each  to  the  same  degree  that  they  are  pos- 
sessed by  every  other  state.  For  example :  England 


32  OUTLINES  OF  INTERNATIONAL  LAW. 

and  Portugal  have  the  same  right  to  borrow  money,  to 
send  ambassadors,  and  to  make  treaties  of  alliance. 
But  whether  one  can  borrow  money  at  a  lower  rate  of 
interest  than  the  other,  whether  the  ambassadors  of 
both  powers  at  Berlin  have  the  same  influence,  and 
whether  an  alliance  with  one  will  be  as  advantageous 
as  with  the  other,  are  questions  that  depend  upon  the 
financial  resources,  political  influence,  and  military 
power  of  each  state,  which  are  all  of  them  very  un- 
equal. 

A  Sovereign  State  is  one  which  retains  and  exercises 
all  of  its  essential  attributes  of  sovereignty,  which  has 
parted  with  none  of  them,  but  retains  them  all  unim- 
paired. Russia,  France,  England,  China,  and  Japan 
are  sovereign  states. 

A  Dependent,  or  Semi-sovereign  State,  is  one  which 
has  lost  or  surrendered  some  of  its  essential  attributes 
of  sovereignty,  or  which  was  not  endowed  with  per- 
fect sovereign  rights  when  it  was  constituted  a  state. 
The  Ionian  Islands,  placed  by  the  Treaty  of  Paris  un- 
der the  protection  of  Great  Britain,  are  cited  by  Kliiber 
as  a  perfect  example  of  a  semi-sovereign  state. l 

7.  A  Confederation  is  an  artificial  state,  resulting 
from  the  more  or  less  complete  union  of  two  or  more 
states.  This  involves  the  temporary  or  permanent  sur- 
render of  some  sovereign  rights  on  the  part  of  each  of 
the  confederated  states  to  the  artificial  state  created 
by  the  treaty  of  union,  or  constitution  of  the  confed- 
eracy. The  number  and  importance  of  the  sovereign 
rights  surrendered  by  the  component  states  will  deter- 
mine the  character  and  strength  of  the  confederacy. 

1  Phillimore,  vol.  i.,  p.  100. 


STATES  AND  THEIR   ESSENTIAL  ATTRIBUTES.         33 

The  United  States,  under  the  Articles  of  Confedera- 
tion, the  Holy  Eoman  Empire,  the  Zollverein,  and  the 
German  Confederation,  as  reorganized  in  1815,  are  ex- 
amples of  loose  confederations.  The  present  German 
Empire  is  a  stronger  confederation.  The  Swiss  Con- 
federation, the  union  of  England  and  Scotland,  the 
United  States  under  the  present  Constitution,  are  ex- 
amples of  close  political  union. 

Rule  for  Determining  the  Strength  of  a  Confedera- 
tion or  Union. — Between  these  extremes  there  may 
exist  many  kinds  of  confederacies.  To  determine  the 
political  strength  of  any  particular  confederation  its 
constitution  must  be  examined,  and  an  accurate  account 
taken  of  the  powers  surrendered  and  retained  by  each 
component  state.  If  the  power  of  making  political 
treaties,  of  sending  and  receiving  ambassadors,  and  of 
separate  peace  or  war  are  vested  in  the  central  gov- 
ernment, the  confederacy  is  said  to  be  close  or  strong. 
If  a  considerable  number  of  these  powers  are  retained 
by  the  component  states  the  confederation  is  said  to 
be  loose  or  weak. 

8.  Hight  of  a  State  to  Change  its  Constitution  and 
Form  of  Government. — As  an  incident  of  its  sover- 
eignty and  independence,  a  state  has  a  perfect  right  to 
make  such  changes  in  its  constitution,  government,  and 
laws  as  it  may  deem  expedient  or  desirable.  These 
changes  may  be  so  radical  in  character  as  to  effect  a 
complete  change  in  its  form  of  government.  The  po- 
sition of  such  a  state  in  International  Law  is  in  no  way 
affected  by  such  changes,  so  long  as  they  are  strictly 
internal  in  character.  The  new  government  succeeds 
to  the  powers  and  privileges,  and  becomes  responsible 
for  the  obligations,  of  the  government  which  has  been 
3 


34  OUTLINES   OF  INTERNATIONAL  LAW. 

displaced.  None  of  these  can  be  abrogated  or  in  any 
way  impaired.  This  follows  from  the  principle  that  a 
state  is  a  continuing  body,  capable  of  enjoying  rights, 
of  exercising  sovereign  powers,  of  incurring  obligations 
and  of  performing  duties.  Of  this  body  the  govern- 
ment is  the  life,  or  moving  force.  A  change  of  gov- 
ernment, therefore,  is  but  a  change  in  the  character  of 
this  moving  force.  It  gives  the  state  no  new  powers  or 
rights,  it  absolves  it  from  none  of  its  duties  or  obliga- 
tions. These  ever  remain  unchanged. 

9.  Acquisition  of  Sovereignty. — Of  the  states  now 
acknowledged  as  sovereign,  in  the  civilized  world,  some 
were  in  existence  when  International  Law  began  to  as- 
sume importance  as  a  separate  science.     Others  have 
since  been  added  to  the  family  of  states.     A  new  state 
may  come  into  being  in  one  of  two  ways. 

(a.}  By  separation  from  an  existing  state  or  states ; 
and  this  may  be  brought  about :  (1)  By  peaceful  meth- 
ods, with  the  consent  of  the  parent  state,  or  with  the 
mutual  consent  of  the  states  from  which  the  new  state 
derives  its  territory  and  population  ;  (2)  By  violent  or 
hostile  means,  as  by  revolution  or  conquest. 

(5.)  By  the  combination  of  two  or  more  states  into 
a  permanent  union,  the  component  states  abandoning 
their  identity  completely,  or  surrendering  permanently 
most  of  their  sovereign  powers. 

10.  A  state  may  lose  a  part  or  the  whole  of  its  sov- 
ereign character.     It  may  lose  its  identity  completely, 
by  absorption  in  another  state ;  by  peaceful  methods 
of  confederation  or  union,  or  by  the  hostile  methods  of 
conquest  or  subjugation.    Sovereign  rights  and  obliga- 
tions, however,  can  never  be  destroj^ed.     If  they  cease 
to  be  exercised  by  one  state  they  pass  with  the  popu- 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.  35 

lation  and  territory  into  the  corporate  existence  of  an- 
other, which  assumes  them,  and,  while  enjoying  the 
rights,  must  recognize  and  be  bound  by  the  obliga- 
tions. 

11.  Territory. — It  has  already  been  seen  that  a  state 
exercises  its  sovereign  powers  within  a  certain  terri- 
tory. From  the  definition  of  a  sovereign  state  it  is 
seen  that  the  only  possible  line  of  demarcation  that 
can  exist  between  sovereign  states  is  a  territorial  line. 
Where  the  sovereignty  of  one  state  begins  that  of  an- 
other ends. 

The  territory  of  a  state  is  that  portion  of  the  earth's 
surface  over  which  a  state  exercises  sovereign  jurisdic- 
tion, and  within  which  that  jurisdiction  is  supreme. 
The  boundaries  of  a  state  may  be  natural,  consisting 
of  mountains,  rivers,  or  the  coasts  of  oceans,  seas,  gulfs, 
or  bays ;  or  artificial,  consisting  of  parallels  of  latitude 
or  longitude,  or  lines  described  in  treaties  by  their  di- 
rection and  length  between  terminal  points.  They  are 
usually  established  by  accurate  surveys,  and  marked  in 
position  by  permanent  monuments. 

Rivers  as  Boundaries. — When  a  river  forms  the 
boundary  between  two  states  the  line  of  demarcation 
follows  the  mid-channel.  If  the  channel  changes,  there 
is  some  difference  of  opinion  as  to  whether  the  boun- 
dary changes  with  it,  or  remains  in  the  ancient  bed. 
In  most  cases  that  have  arisen  the  rules  of  the  Ro- 
man Law  have  prevailed  in  the  settlement  of  the  dis- 
puted question  of  boundary.  Should  the  change  be 
important  the  question  would  probably  be  adjusted 
by  agreement  among  the  interested  states.  Where 
rivers  separate  and  traverse  the  territory  of  a  num- 
ber of  states  the  question  of  boundary  is  necessarily 


36  OUTLINES  OF  INTERNATIONAL  LAW. 

affected  by  considerations  of  greater  intricacy  and 
difficulty  having  to  do  with  their  improvement  and 
navigation.1  In  recent  times  the  tendency  has  been  to 
remove  all  restrictions  upon  the  navigation  of  such 
rivers,  and  to  throw  them  open  to  general  commerce. 
These  changes  have  been  effected  by  treaties,  to  which 
the  states  interested  in  the  navigation  of  particular 
rivers  have  been  parties.  In  accordance  with  their 
stipulations  uniform  rates  of  toll  have  been  established, 
unnecessary  and  burdensome  charges  have  been  abol- 
ished or  modified,  and  the  expenses  of  maintenance 
and  improvement  have  been  equitably  assessed  upon 
the  riparian  powers.  To  defray  these  expenses  various 
expedients  have  been  resorted  to.  In  some  of  the 
earlier  treaties  the  revenues  derived  from  tolls  were 
appropriated  to  the  purpose.  Later  treaties  provide 
for  an  apportionment  of  the  expense  of  improvement 
among  the  riparian  powers,  and  for  the  removal  of  all 
restrictions  in  the  way  of  tolls  and  dues  from  the  navi- 
gation of  the  river.  In  this  way  most  of  the  navigable 
rivers  of  Europe,  that  are  not  entirely  included  within 
the  territory  of  a  single  state,  have  been  thrown  open 
to  general  commercial  use. 

What  Constitutes  the  Territory  of  a  State. — All  bodies 
of  water,  all  inland  seas,  gulfs,  lakes,  and  rivers  lying 
entirely  within  the  external  boundaries  of  a  state,  are 
portions  of  its  territory,  and  are  subject  to  its  jurisdic- 
tion. All  littoral  islands  belong  to  the  state  to  which 
they  are  adjacent.  All  gulfs  and  bays,  river  mouths 

1  In  this  respect  an  important  difference  was  mafle  in  the  Roman 
Law  between  rivers  and  the  sea.  The  former  were  regarded  as  a 
portion  of  the  public  property  of  the  state;  the  navigation  of  the  lat- 
ter was  held  to  be  the  common  right  of  all.  Phillimore,  vol.  i.,  p.  189. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          37 

and  estuaries  included,  or  almost  included,  by  the  land, 
are  also  regarded  as  a  part  of  the  territory  of  a  state. 
If  the  headlands  be  remote,  the  rule  of  possession  is 
not  yet  fully  determined,  for  the  reason  that  no  inter- 
national understanding  has  as  yet  been  reached  as  to 
the  distance  between  headlands  which  shall  determine 
ownership  and  jurisdiction  in  all  cases.  As  claims  are 
advanced  to  jurisdiction  over  particular  bodies  of  wa- 
ter they  are  usually  adjusted  by  the  states  locally  in- 
terested, and  their  decision,  if  just  and  equitable,  is  ac- 
quiesced in  by  other  nations.1 

Jurisdiction  over  Closed  Seas. — The  question  of  ju- 
risdiction over  many  such  partly  included  bodies  of 
water,  sometimes  called  closed  seas,  has  already  been 
decided.  The  Chesapeake  and  Delaware  bays  are  rec- 
ognized as  parts  of  the  territory  of  the  United  States, 
Hudson's  Bay  and  the  Irish  Sea  as  British  territory ; 
the  Caspian  Sea  belongs  to  Russia,  Lake  Michigan  to 
the  United  States.  The  Black  Sea,  before  Russia  ob- 
tained a  foothold  upon  it,  formed  part  of  the  territo- 
ries of  the  Ottoman  Porte ;  it  is  now  subject  to  the 
joint  jurisdiction  of  Turkey  and  Russia.  The  Baltic  is 
acknowledged  to  have  the  character  of  a  closed  sea 
(and  to  be  subject  to  the  control  of  the  powers  sur- 
rounding it),  certainly  to  the  extent  of  guaranteeing  it 
against  acts  of  belligerency,  when  the  powers  within 
whose  territory  it  lies  are  at  peace. 

Rights  of  Ownership  and  Jurisdiction  in  the  Case  of 
Straits. — The  rights  of  possession  and  jurisdiction  in 
the  case  of  narrow  straits  and  passes  depend  upon  the 
ownership  of  the  territory  separated  by  them.  The 

1  Halleck,  vol.  i.,  p.  140. 


38  OUTLINES  OF  INTERNATIONAL    LAW. 

right  of  navigating  them  depends  upon  the  character 
of  the  bodies  of  water  which  they  connect.  If  the 
connected  seas  are  open  to  general  commercial  naviga- 
tion, the  right  extends  to,  and  includes,  the  use  of  the 
strait  as  a  necessary  means  of  communication.  This 
is  sometimes  called  the  right  of  innocent  passage.  The 
Strait  of  Gibraltar  is  free,  because  the  Atlantic  Ocean 
and  Mediterranean  Sea  are  open  to  the  commerce  of 
all  nations.  A  similar  rule  applies  to  the  Bosphorus, 
the  Sea  of  Marmora,  and  the  Dardanelles,  connecting 
the  Black  and  Mediterranean  seas,  subject  to  the  re- 
strictions upon  the  passage  of  war  vessels  which  are 
contained  in  the  treaties  of  1856  and  1871. 

The  Danish  Sound  Dues. — The  peculiar  claim  of 
Denmark  to  jurisdiction  over  the  strait  connecting 
the  ISTorth  and  Baltic  seas  was  long  a  fruitful  source  of 
complaint  to  all  commercial  nations.  These  claims 
were  exercised  in  the  form  of  a  toll,  or  tax,  called  Sound 
Dues,  levied  upon  all  shipping  which  passed  the  strait 
in  either  direction.  They  were  based,  in  part,  upon 
immemorial  prescription,  and  in  part  upon  the  expense 
incurred  by  Denmark  in  the  maintenance  of  lights  and 
buoys  in  the  narrow  and  dangerous  passage. 

The  question  of  the  sound  dues  was  settled  in  1857 
by  a  treaty  entered  into  between  Denmark  and  the 
great  European  powers.  "  The  right  of  Denmark  to 
levy  these  dues  was  not  distinctly  recognized,  but  com- 
pensation was  made  to  her  by  the  payment  of  a  capital 
sum,  on  the  ground  of  indemnity  for  maintaining  lights 
and  buoys,  which  Denmark  stipulated  to  maintain,  and 
levy  no  further  duties." l  As  the  treaty  of  1857  dealt 

1  Phillimore,  vol.  i.,  p.  217. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          39 

with  other  questions,  of  strictly  European  concern,  and 
to  which  the  United  States  was  unwilling  to  become  a 
party,  a  separate  treaty  was  entered  into  between  that 
power  and  Denmark  by  which,  in  consideration  of  the 
payment  of  a  lump  sum,  the  shipping  of  the  United 
States  was  to  be  exempted  from  similar  levies  in  the 
future.1 

If  the  territory  separated  by  the  waters  of  a  narrow 
strait  belongs  to  a  single  state,  the  right  of  jurisdiction 
over  the  separating  strait  is  conceded  to  belong  to  the 
owner  of  the  territory.  The  Strait  of  Messina,  sepa- 
rating the  island  of  Sicily  from  the  Italian  mainland,  be- 
longs to  Italy,  the  Bosphorus  and  Dardanelles  to  Tur- 
key, the  Great  and  Little  Belt  and  the  Sound  to  Den- 
mark. If  the  territory  separated  by  the  waters  of  the 
strait  belongs  to  different  states  the  strait  belongs  in 
part  to  each  power.  The  line  of  territorial  demarca- 
tion is  determined  as  in  the  case  of  boundary  rivers, 
and  the  jurisdiction  of  the  adjacent  states  is  separated 
in  the  same  manner. 

Ship  Canals. — Artificial  ways  of  communication, 
like  ship  canals,  however  important  their  construction 
may  prove  to  be  in  its  effects  upon  commerce,  can  ac- 
quire interest  from  the  point  of  view  of  International 
Law  only  when  they  have  been  made  the  subject  of 
treaty  stipulation.  No  existing  rules  apply  to  them,  or 
can  be  made  to  apply,  by  any  process  of  construction. 
They  are  not  arms  of  the  sea,  nor  straits,  nor  riv- 
ers. Nor  are  they  natural  channels  of  trade  or  com- 
merce over  which  all  nations  have  the  right  of  inno- 
cent passage.  Their  neutrality  in  war  is  the  most  se- 

1  "Treaties  and  Conventions  of  the  United  States,"  p.  213. 


40  OUTLINES  OF  INTERNATIONAL  LAW. 

rious  question  that  can  arise  with  respect  to  them,  and 
this  can  only  be  secured  by  a  guarantee  of  the  great 
powers,  or  by  a  sufficient  number  of  them  to  secure 
the  observance  of  such  guarantee.  The  neutrality  of 
the  proposed  Nicaragua  Canal  is  guaranteed  by  Great 
Britain  and  the  United  States,1  that  of  the  Panama 
Canal  by  the  latter  power  only."  The  neutrality  of  the 
Suez  Canal  may  be  made  the  subject  of  a  similar  guar- 
antee; at  present,  however,  its  neutrality  is  not  se- 
cured— a  situation  which  may  lead  to  serious  compli- 
cations in  the  future. 

Jurisdiction  over  a  Portion  of  Coast  Sea. — Although 
the  strict  territorial  jurisdiction  of  a  state  ends  at  the 
low- water  mark,  where  the  high  seas  begin,  its  claim  to 
exercise  jurisdiction  over  a  strip  of  sea  three  miles  in 
width  has  long  been  generally  recognized.  Over  this 
belt  of  coast  sea,  called  the  Marine  League,  a  state  is 
acknowledged  to  have  complete  jurisdiction  as  against 
other  states.  Whether  its  courts  can  assume  jurisdic- 
tion over  it  or  not,  will  depend  upon  its  municipal 
laws.  This  peculiar  jurisdiction  is  acknowledged  to 
guarantee  immunity  from  acts  of  belligerency  between 
ships  of  nations  other  than  that  to  which  the  coast  sea 
belongs ;  to  enable  a  state  to  carry  into  effect  its  mari- 
time laws  and  customs  regulations ;  to  secure  protec- 
tion to  the  inhabitants  of  the  coast — especially  to  those 
engaged  in  coast  fisheries,  and  to  provide  for  an  ade- 
quate system  of  coast  defence.  As  one  of  the  chief 
reasons  for  recognizing  jurisdiction  over  the  three-mile 
limit  has  to  do  with  questions  of  sea-coast  defence,  it 

1  "Treaties  and  Conventions  of  the  United  States,"  p.  378. 
9  Ibid.,  p.  187. 


STATES  AND   THEIR  ESSENTIAL  ATTRIBUTES.         4^ 

seems  proper  that  the  width  of  this  zone  should  in- 
crease, as  the  range  of  modern  artillery  increases.1  A 
ship  entering  or  passing  through  this  strip  of  coast  sea, 
in  the  prosecution  of  a  voyage,  is  not  regarded  as  having 
entered  the  territory  of  the  adjacent  state ;  nor  is  it 
subject  to  the  rules  of  navigation  which  are  sanctioned 
by  that  state,  and  enforced  against  its  own  shipping. 

The  municipal  laws  of  many  states  also  assume  a 
limited  jurisdiction  over  a  wider  zone  of  coast  sea  in 
defining  offences  against  their  revenue  laws.  This 
right  has  never  been  generally  recognized,  however, 
and  is  only  assumed,  or  authorized,"  for  fiscal  and  de- 
fensive purposes. 

Case  of  the  Franconia. — Considerable  light  has  been 
thrown  upon  the  exact  character  and  extent  of  the  ju- 
risdiction of  a  state  over  the  sea  included  within  the 
three-mile  limit  by  the  case  of  the  Franconia.3  The 
Franconia  was  a  German  steamer,  commanded  by 
Keyn,  a  foreigner,  which,  in  the  prosecution  of  a  for- 
eign voyage,  passed  within  three  miles  of  the  English 
coast.  While  within  the  three-mile  limit  the  Fran- 
conia collided  with  an  English  vessel  and  sunk  her, 
causing  the  death  of  one  of  her  passengers.  Some 
time  later  Captain  Keyn  came  within  English  jurisdic- 
tion, and  was  arrested  and  tried  for  manslaughter. 
He  was  convicted  of  that  offence  in  the  Central 
Criminal  Court,  but  his  case  was  carried  up,  on  a 
question  of  jurisdiction,  to  the  Court  of  Appeals. 

1  Ortolan,  in  his  "  Diplomatie  de  la  Mer,"  liv.  ii.,  chap.  8,  and  Hal- 
leek,  chap,  iv.,  §  13,  advocate  this  view.     For  an  opposite  opinion, 
see  Boyd's  Wheaton,  p.  239. 

2  Halleck,  vol.  i.,  pp.  137,  138. 

8  Regina  vs.  Keyn,  2  Exch.  Div.,  pp.  202-205. 


42  OUTLINES  OF  INTERNATIONAL  LAW. 

It  was  there  held  by  a  majority  of  the  judges  that, 
in  so  far  as  the  court  that  had  tried  Keyn  was  con- 
cerned, the  crime  had  been  committed  upon  a  for- 
eign ship,  on  the  high  seas,  and  in  the  prosecution 
of  a  foreign  voyage.  The  Central  Criminal  Court, 
therefore  had  no  jurisdiction  in  the  case.  The  view  of 
the  majority  was,  that  in  so  far  as  other  states  were 
concerned,  England  had  jurisdiction,  for  all  purposes, 
over  that  portion  of  the  high  seas  included  within  the 
three-mile  limit ;  but,  as  the  law  of  England  stood  at 
that  time,  jurisdiction  over  crimes  committed  within 
that  limit  had  not  been  bestowed  by  Parliament  upon 
any  of  the  courts  of  the  kingdom.  Their  criminal  ju- 
risdiction ended  at  the  low-water  mark,  and  crimes 
beyond  that  limit  were  therefore  committed  out  of 
their  jurisdiction.' 

The  High  Seas. — This  term  is  applied  to  the  general 
ocean  surface  of  the  globe.  It  begins  at  the  low-water 
mark,  where,  by  legal  presumption,  the  land  is  held  to 
end.  Upon  the  high  seas  all  nations  have  equal  rights. 
The  privilege  of  sailing  over  them  or  of  fishing  in  them 
belongs  equally  to  all.  No  state  can  include  them  with- 

1  Soon  after  this  decision  was  announced,  Parliament,  by  the  Ter- 
ritorial Waters  Jurisdiction  Act  (40  and  41  Vic.,  chap.  73)  assumed 
jurisdiction  over  the  coast  sea  to  the  distance  of  a  marine  league, 
and  bestowed  it  upon  the  Courts  of  Admiralty.  This  was  done 
with  a  proviso  that  "no  proceeding  should  be  had  in  any  case 
under  the  act  unless  with  the  consent  of  one  of  Her  Majesty's 
secretaries  of  state,  and  on  his  certificate  that  the  institution  of 
the  proceedings  is,  in  his  opinion,  necessary."  This  reservation 
was  doubtless  intended  to  prevent  a  conflict  between  the  execu- 
tive and  judicial  departments  of  the  government  in  the  event  of 
a  case  arising  under  the  act  of  such  a  nature  as  to  involve  con- 
siderations of  an  international  character. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          43 

in  its  territory,  or  extend  its  dominion  over  the  whole 
or  any  part  of  the  high  seas. 

The  doctrine  of  the  absolute  freedom  of  the  high 
seas  is  of  relatively  recent  growth.  In  former  times 
claims  were  made  to  exclusive  jurisdiction  over  large 
portions  of  the  sea,  but  none  of  them  are  now  main- 
tained. 

Claims  to  Exclusive  Dominion. — In  the  early  part 
of  the  sixteenth  century  extravagant  claims  to  domin- 
ion were  advanced  by  Spain  and  Portugal,  based  upon 
their  maritime  discoveries.  As  these  claims  were  of  the 
most  conflicting  character,  a  controversy  arose,  which 
was  submitted  to  Pope  Alexander  VI.  for  decision. 
He  decreed  that  all  those  parts  of  the  world  which 
were  not  then  in  secure  possession  of  any  Christian 
prince  should  be  divided  between  Spain  and  Portugal. 
A  meridian  line  was  established  through  a  point  one 
hundred  leagues  west  of  the  Azores,  as  a  boundary  be- 
tween the  possessions  of  the  two  powers ;  all  the  ter- 
ritory to  the  west  of  the  line  was  decreed  to  Spain, 
and  all  to  the  east  of  the  same  line  to  Portugal.  Un- 
der this  authority,  which  seems  to  have  had  interna- 
tional recognition,  Portugal  forbade  all  commerce  with 
the  East  Indies  and  the  west  coast  of  Africa ;  Spain, 
claiming  the  Pacific  Ocean  and  the  Caribbean  Sea  as 
Spanish  territory,  forbade  all  commerce  with  Mexico, 
the  west  coast  of  North  and  South  America,  and  the 
isknds  of  the  Pacific. 

England  at  one  time  claimed  that  its  jurisdiction 
over  the  narrow  seas  ended  at  the  coasts  of  France 
and  the  Netherlands.  This  claim  was  resisted,  espe- 
cially by  the  Dutch,  and  so  successfully  that  it  was 
largely  reduced  in  importance,  and  at  the  close  of  the 


44  OUTLINES  OF  INTERNATIONAL  LAW. 

seventeenth,  century  finally  abandoned.  Russia,  in 
1822,  laid  claim  to  exclusive  jurisdiction  over  that  part 
of  the  Pacific  Ocean  lying  north  of  the  fifty-first  de- 
gree of  north  latitude,  on  the  ground  that  it  possessed 
the  shores  of  that  sea,  on  both  continents,  beyond  that 
limit,  and  so  had  the  right  to  restrict  commerce  with 
the  coast  inhabitants.  England  and  the  United  States 
entered  vigorous  protests  against  the  right  claimed  by 
Russia,  as  contrary  to  the  principles  of  International 
Law,  and  it  Avas  formally  withdrawn  in  1824. 

12.  Rights  of  River  Navigation. — The  liberal  meth- 
ods now  so  generally  applied  to  the  solution  of  ques- 
tions having  to  do  with  the  treatment  of  navigable 
rivers  date  from  the  Congress  and  Treaty  of  Vienna, 
in  1815.  On  the  few  previous  occasions  in  which  such 
questions  had  been  made  the  subject  of  treaty  stipula- 
tion the  right  of  joint  or  public  navigation,  if  recog- 
nized at  all,  had  been  hampered  with  needless  and 
burdensome  restrictions,  originating  in  the  mutual 
jealousy  of  the  interested  parties,  and  but  little  cal- 
culated to  favor  the  development  of  interstate  com- 
merce. The  Treaty  of  Vienna,  however,  inaugurated 
a  marked  change  in  this  respect.  The  16th  annexe  of 
that  instrument  contains  a  body  of  fundamental  prin- 
ciples, in  accordance  with  which  detailed  rules  were  to 
be  prepared,  by  the  states  locally  interested,  for  the 
regulation  of  navigation  of  six  important  European 
rivers — the  Rhine,  Main,  Moselle,  Neckar,  Meuse,  and 
Scheldt.  The  109th  article  declares  that  these  streams 
are  thrown  open  to  the  commerce  of  all  nations  from 
the  points  where  they  become  navigable  to  the  sea. 
At  different  times  between  1815  and  1856  arrange- 
ments, conceived  in  the  same  liberal  spirit,  were  en- 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          4.5 

tered  into  with,  reference  to  the  Elbe,  Vistula,  Weser, 
and  Po ;  and,  in  1835,  by  a  treaty  between  Spain  and 
Portugal,  the  navigation  of  the  Douro  was  declared 
common  to  the  subjects  of  both  powers. 

Case  of  the  Danube. — As  Turkey  was  not  a  party  to 
International  Law  at  the  time  of  the  negotiation  of  the 
Treaty  of  Vienna,  the  provisions  of  that  instrument 
were  not  extended  to  the  Danube.  The  first  attempt 
to  regulate  the  navigation  of  that  river  is  found  in  the 
Treaty  of  Bucharest,  entered  into  between  Turkey  and 
Russia  in  1812.  By  the  fourth  article  of  that  treaty  it 
was  agreed  that  the  boundary  line  between  the  two 
states  should  follow  the  left  bank  of  the  Danube  from 
its  junction  with  the  Pruth  to  its  mouth  at  Kilia,  on 
the  Black  Sea ;  and  the  navigation  of  both  rivers  was 
declared  to  be  free  to  the  subjects  of  the  signatory 
powers.  The  Danube  enters  the  Black  Sea  through 
three  principal  channels.  The  most  northern  of  these, 
which  is  known  as  the  Kilian  mouth,  carries  by  far  the 
greater  part  of  its  waters  to  the  sea,  and  is  the  one  best 
adapted  to  purposes  of  navigation.  The  central,  or 
Sulina  channel,  discharges  but  a  small  part  of  the  vol- 
ume of  the  stream.  The  southern,  or  St.  George's 
channel,  carrying  about  one  third  of  the  volume  of  the 
river,  reaches  the  sea,  through  several  mouths,  at  a 
point  about  twenty  English  miles  to  the  south  of  the 
Sulina  channel.  By  the  Treaty  of  Adrianople,  in  1815, 
to  which  Turkey  and  Russia  were  the  contracting  par- 
ties, the  Sulina  mouth,  which  had  been  left  in  the  pos- 
session of  Turkey  by  the  former  treaty,  was  acquired 
by  Russia,  that  power  binding  itself  to  maintain  its 
channel  at  a  sufficient  depth  to  admit  vessels  at  all 
times.  This  stipulation  does  not  seem  to  have  been 


46  OUTLINES  OF  INTERNATIONAL  LAW. 

rigidly  observed  by  Russia,  and  its  failure  to  maintain 
a  navigable  channel  was  made  the  subject  of  remon 
strance,  at  different  times,  by  several  European  pow- 
ers. ISTo  change  was  made  in  the  existing  treaties, 
however,  and  the  question  remained  in  this  condition 
until  the  close  of  the  Crimean  war. 

By  the  Treaty  of  Paris,  in  1856,  to  which  instru- 
ment Turkey  was  a  signatory  party,  the  Danube  was 
placed  upon  the  same  footing  as  the  other  great  rivers 
of  Europe.  A  commission  was  created  for  the  pur- 
pose of  erecting  and  maintaining  such  engineering 
works  at  the  mouth  of  the  river  as  were,  or  might  be- 
come, necessary  in  the  interest  of  navigation.  The 
commission  began  its  labors  in  1857.  The  Sulina  mouth 
was  chosen  as  the  one  most  susceptible  of  improvement, 
and  suitable  works  were  undertaken  for  its  betterment. 
The  funds  for  this  purpose  were  supplied  by  Turkey 
during  the  years  between  1857  and  1860 ;  from  1860 
onward  they  were  obtained  by  a  tax  levied  upon  all 
vessels  entering  the  river.  The  Treaty  of  March  13, 
1871,  extended  the  operations  of  the  Danubian  Com- 
mission for  a  further  period  of  twelve  years ;  and  a 
new  and  significant  step  was  taken  by  an  agreement 
of  the  powers  to  a  declaration  guaranteeing  the  per- 
manent neutrality  of  the  works  of  improvement  at  the 
mouth  of  the  river. 

The  cases  of  the  Mississippi  and  St.  Lawrence  rivers, 
in  the  United  States,  gave  rise  to  much  controversial 
discussion. 

Case  of  the  Mississippi. — The  Peace  of  Paris,  in 
1763,  brought  to  a  close  the  long  series  of  wars  for  do- 
minion between  England  and  France,  to  which  Spain 
had  become  a  party,  as  an  ally  of  France,  in  1761. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          47 

By  the  Treaty  of  Paris  the  Mississippi  Biver  had  been 
recognized  as  the  boundary  between  the  possessions  of 
England  and  France  in  America,  from  its  source  to  its 
junction  with  the  Iberville,  an  eastern  tributary,  con- 
necting it  with  the  lake  system  of  its  lower  basin. 
From  that  point  the  boundary  line  followed  the  course 
of  the  Iberville,  through  lakes  Pontchartrain  and  Mau- 
repas,  to  the  Gulf  of  Mexico.  The  line  of  the  Iber- 
ville separated  Florida  and  Louisiana,  which  were  ced- 
ed by  the  treaty,  the  former  to  England  and  the  latter 
to  Spain,  and  the  right  of  navigating  the  Mississippi 
was  secured  to  the  subjects  of  Great  Britain  from  its 
source  to  the  sea. 

The  treaty  of  peace  between  England  and  the  United 
States,  which  terminated  the  war  of  the  Revolution, 
was  signed  on  Sept.  3,  1783.  On  the  same  day  a 
treaty  was  negotiated  between  England  and  Spain,  by 
which  the  provinces  of  East  and  "West  Florida  were 
retroceded  to  Spain.  France  ceded  to  Spain  a  portion 
of  the  province  of  Louisiana,  thus  giving  to  the  latter 
power  undisputed  control  over  the  lower  waters  of  the 
river,  from  its  mouth  to  its  intersection  by  the  thirty- 
first  parallel  of  north  latitude,  the  course  of  the  river 
north  of  that  point  forming  the  boundary  between  the 
United  States  and  the  French  possessions  in  ]Sbrth 
America.  This  state  of  affairs  gave  rise  to  a  contro- 
versy between  Spain  and  the  United  States,  as  to  the 
right  of  citizens  of  the  latter  power  to  navigate  that 
part  of  the  river  lying  wholly  within  Spanish  terri- 
tory. 

On  the  part  of  the  United  States  it  was  claimed  that 
the  Treaty  of  1763,  between  England  and  Spain,  had 
given  to  the  subjects  of  Great  Britain  the  right  to  nav- 


48  OUTLINES  OF   INTERNATIONAL  LAW. 

igate  the  river  from  its  source  to  the  sea.  This  treaty 
had,  in  fact,  created  a  territorial  servitude,  which  had 
not  been  extinguished  or  repudiated  by  either  of  the 
treaties  of  1763  or  1783.  It  was  fair  to  presume,  there- 
fore, that  it  still  existed,  and  that  the  subsequent  trans- 
fer of  territory  on  the  east  bank  of  the  river  had  been 
made  subject  to  the  right  of  navigation  Avhich  was 
then  enjoyed  by  the  inhabitants  of  its  upper  waters. 
A  provision  of  the  Roman  Law  was  cited  in  behalf  of 
the  United  States,  by  which  all  navigable  rivers  were 
held  to  be  "  so  far  public  property  that  a  free  passage 
over  them  was  open  to  everybody,  and  the  use  of  their 
banks  for  the  anchorage  of  vessels,  lading  and  unlad- 
ing cargo,  and  acts  of  the  like  kind,  was  regarded  as 
incapable  of  restriction  by  any  right  of  private  do- 
main." 1  It  was  also  claimed,  on  the  part  of  the 
United  States,  that  the  Mississippi  River  furnished  the 
only  practicable  outlet  to  the  sea  for  all  the  products 
of  the  upper  valley.  The  claim,  based  upon  this  fact, 
was  held  by  the  American  negotiators  to  be  of  suffi- 
cient importance  to  constitute  a  perfect  right  at  Inter- 
national Law.  These  claims  were  rejected  by  Spain, 
whose  right  to  control  the  navigation  of  the  lower 
courses  of  the  river  was  based  upon  the  fact  of  its 
territorial  jurisdiction.  The  position  assumed  by  the 
United  States  was  not  regarded  as  a  sound  one  in  ac- 
cordance with  the  provisions  of  International  Law  as 
then  understood,  and  the  controversy  was  brought  to 
an  end  by  the  Treaty  of  Oct.  20,  1795,  between  the 
United  States  and  Spain.  By  the  terms  of  that  treaty 
the  navigation  of  the  Mississippi  was  to  be  free  to  both 

1  Phillimore,  vol.  i.,  p.  189. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          49 

parties  throughout  its  entire  extent.  The  Americans 
were  to  enjoy  a  right  of  deposit  at  Kew  Orleans  for 
three  years,  at  the  end  of  which  period  either  that 
privilege  was  to  be  continued,  or  an  equivalent  estab- 
lishment was  to  be  assigned  them  at  some  other  con- 
venient point  on  the  banks  of  the  Lower  Mississippi. ' 
The  question  of  navigating  this  important  stream  w«« 
finally  settled  by  the  purchase  of  Louisiana,  in  1803, 
and  of  Florida  in  1819,  which  placed  the  river  for  its 
i.nihv  !;-ngth  within  the  territorial  jurisdiction  of  the 
ITnited  {States. 

Case  of  the  St.  Lawrence. — The  case  of  the  St.  Law- 
rence presents  many  considerations  similar  in  charac- 
ter to  those  discussed  in  the  case  of  the  Mississippi. 
Its  navigation  was  a  matter  of  great  importance  to 
the  United  States  for  the  reason  that  it  furnished,  at 
that  time,  the  only  outlet  to  the  sea  for  commerce  orig- 
inating in  the  great  lake  system  of  JS^orth  America. 
These  lakes,  with  the  exception  of  Lake  Michigan, 
which  lies  wholly  within  the  territory  of  the  United 
States,  lie  upon,  and  form  a  part  of,  the  boundary  be- 
tween the  United  States  and  the  British  possessions  in 
Xorth  America.  From  the  head  of  Lake  Superior  to 
the  source  of  the  St.  Lawrence  in  Lake  Ontario,  and 
along  the  course  of  that  river  to  its  intersection  by  the 
northern  boundary  of  the  United  States,  the  right  of 
navigation  was  determined,  beyond  question,  by  the 
universally  accepted  rules  of  International  Law,  and  be- 
longed jointly  to  the  two  powers.  The  lower  course 
of  the  river,  from  its  intersection  by  the  forty-fifth  par- 
allel of  north  latitude  to  its  mouth  in  the  Gulf  of  St. 

1  Hildreth,  "History  of  the  United  States,"  vol.  iv.,  p.  569. 
4 


50  OUTLINES  OF  INTERNATIONAL  LAW. 

Lawrence,  lay  entirely  within  the  British  territory. 
The  question  between  the  two  governments,  therefore, 
had  exclusively  to  do  with  the  right  of  navigation  of 
the  British,  or  lower,  section  of  the  river. 

On  the  part  of  the  United  States  it  was  contended, 
as  in  the  case  of  the  Mississippi,  that,  as  the  lower 
course  of  the  river  formed  the  only  outlet  for  com- 
merce arising  in  a  large  portion  of  the  territory  of  the 
United  States  which  lay  upon  the  upper  lakes,  its  nav- 
igation became  a  perfect  right  at  International  Law, 
and  could  be  claimed,  as  a  matter  of  necessity,  by  the 
state  whose  territory  lay  upon  its  upper  waters.  The 
right  of  navigating  the  Mississippi,  stipulated  for  by 
England  in  a  precisely  similar  case,  was  cited  by  the 
United  States  government  in  support  of  its  view,  as 
was  the  action  of  the  Congress  of  Vienna,  to  which 
England  had  been  a  party,  in  throwing  open  a  num- 
ber of  European  rivers  to  general  navigation  in  cases 
similar  to  those  of  the  St.  Lawrence  and  Mississippi. 
It  was  also  contended,  in  behalf  of  the  United  States, 
that,  on  account  of  the  character  and  importance  of 
the  bodies  of  water  connected  by  it,  the  St.  Law- 
rence should  be  regarded  as  a  strait,  rather  than  as  a 
river,  and  that  the  question  of  its  navigation  should  be 
determined,  as  in  the  case  of  straits,  rather  by  the  right 
to  navigate  the  bodies  of  wrater  connected  by  it  than 
by  the  ownership  of  the  banks  along  its  lower  course. 

On  the  part  of  Great  Britain  the  validity  of  the  first 
of  the  positions  assumed  by  the  United  States  was  de- 
nied, as  not  warranted  by  International  Law.  The  con- 
tention was  also  made  that,  wherever  such  concessions 
had  been  granted,  they  had  been  based  upon  treaty 
stipulations.  The  liberal  arrangements  in  regard  to 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          51 

the  joint  or  general  right  of  river  navigation  made  by 
the  Congress  of  Vienna,  and  recognized  in  subsequent 
treaties,  were  based  upon  the  conventional  law  of  na- 
tions, and  could  be  withdrawn  or  modified  at  any  time. 
To  the  second  claim,  that  the  river  should  be  regarded 
as  a  strait,  it  was  replied  that  the  application  of  such  a 
rule  must  be  general  and  international,  and  not  local 
and  particular.  If  it  applied  to  the  case  of  the  St. 
Lawrence,  it  applied  with  equal  force  to  the  Hudson 
and  Mississippi,  and  to  the  artificial  channels  in  !New 
York  and  Ohio  which  formed  a  part  of  the  line  of 
water  communication  between  the  great  lakes  and  the 
sea.  Unless,  therefore,  the  United  States  was  pre- 
pared to  open  these  artificial  channels  to  general  navi- 
gation, the  British  government  must  decline  to  so  re- 
gard that  portion  of  the  St.  Lawrence  which  lay  -en- 
tirely within  its  territorial  jurisdiction.  The  discussion, 
though  ably  conducted  on  both  sides,  led  to  no  results 
of  immediate  or  practical  importance.  The  question 
of  navigation  was  settled  by  the  Reciprocity  Treaty  of 
1854 ;  by  which,  in  consideration  of  certain  concessions 
to  British  subjects  in  the  matter  of  navigating  Lake 
Michigan,  the  right  of  navigation  of  the  St.  Lawrence 
and  the  Canadian  canals,  forming  a  part  of  the  sys- 
tem of  communication  between  the  great  lakes  and  the 
sea,  was  conceded  to  citizens  of  the  United  States.1 
In  this  connection  it  is  well  to  observe  that  the  con- 


1  Many  of  the  navigable  rivers  of  South  America  have  been  thrown 
open  to  general  navigation  (Phillimore,  vol.  L,  p.  209;  Lawrence's 
Wheaton,  pp.  362-365).  For  a  full  discussion  of  the  controversy  be- 
tween England  and  the  United  States  on  the  subject  of  the  St.  Law- 
rence, see  Phillimore,  vol.  i.,  pp.  204-209;  Boyd's  Wheaton,  pp.266- 
270;  Lawrence's  Wheaton,  pp.  356-362;  Halleck,  vol.  i.,  pp.  150-152. 


52  OUTLINES  OF  INTERNATIONAL  LAW. 

cessions  thus  far  obtained  in  the  matter  of  throwing 
open  rivers  to  general  navigation,  however  liberal  they 
may  have  been,  are  all  of  them  based  upon  treaty  stip- 
ulations. In  none  of  these  treaties  is  the  question  treat- 
ed as  one  of  amending  or  modifying  the  existing  rules 
of  International  Law  upon  the  subject  of  river  naviga- 
tion. Such  boundary  rivers,  therefore,  as  have  not 
thus  far  been  made  the  subject  of  treaty  stipulation, 
are  subject,  in  all  questions  affecting  their  ownership 
and  navigation,  to  the  rules  of  International  Law  as  they 
existed  in  1815.  No  claim  can  be  advanced  to  their 
navigation  based  upon  the  treaties  above  referred  to, 
as  none  of  them  have  changed  or  amended  the  existing 
rules  of  International  Law.1 

SERVITUDES. 

13.  Origin  and  Application  of  the  Term. — The  term 
servitude  is  borrowed  from  the  Roman  Law,  and  is  ap- 
plied in  the  international  relations  of  states  to  express 
an  obligation  upon  the  part  of  one  state  to  permit  a 
thing  to  be  done  or  a  right  to  be  enjoyed  by  another 
state  within  or  upon  its  territory.  The  thing  done,  or 
the  right  enjoyed,  however,  must  not  be  sufficient  in 
amount  or  importance  to  constitute  a  restriction  upon 
the  sovereignty  or  independence  of  the  servient  or  sub- 
ordinate state.2  The  state  enjoying  the  benefit  or  priv- 

1  "La  Liberte  de  la  Navigation  Fluviale."    E.  Englehardt,  "Re- 
vue de  Droit  International,"  tome  xi.  (1872),  p.  363. 

2  Under  the  name  of  easements  the  principle  of  servitudes  is  rec- 
ognized by  the  common  law,  with  this  difference,  however,  that 
whereas  a  servitude  could  have  been  imposed  upon  an  individual 
or  his  property  by  the  sovereign  authority  of  the  state,  an  easement 
must,  according  to  the  common  law,  originate  in  an  agreement 
between  the  interested  parties. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          53 

ilege  of  the  servitude  is  called  the  dominant  state.  The 
state  lying  under  the  obligation  involved  is  called  the 
servient  state.  The  existence  of  a  servitude  is  not  in- 
consistent with  entire  sovereignty  and  independence 
on  the  part  of  the  servient  state.  The  following  ex- 
amples are  illustrations  of  servitudes:  Suppose  two 
states,  A  and  B,  to  be  separated  by  a  river ;  A  may  lie 
under  a  servitude  to  B  not  to  construct  works  of  im- 
provement upon  the  boundary  river  which  shall  injure 
the  opposite  bank.  Suppose  two  states,  C  and  D,  to  be 
situated,  one  above  the  other,  upon  the  course  of  a  navi- 
gable river,  the  mouth  and  lower  waters  being  situated 
in  the  territory  of  C ;  C  may  lie  under  a  servitude  to 
D  of  allowing  its  citizens  the  privilege  of  navigating 
the  river  to  the  sea ;  D  may  Me  under  a  servitude  to 
C  not  to  use  the  banks  of  the  river  within  the  terri- 
tory of  C  for  the  purpose  of  loading  and  unloading 
cargoes. 

How  Created  and  Terminated. — Servitudes  may  ex- 
ist by  immemorial  prescription,  such  existence  being 
tacitly  or  expressly  recognized  by  other  states.  Such, 
in  great  part,  was  the  case  of  the  Danish  Sound  Dues. 
They  may  also  be  created  by  treaty,  and  may  be 
amended,  increased,  or  modified  in  the  same  manner. 
They  may  be  extinguished  by  treaty,  by  non-user,  and 
in  some  cases  by  forcible  denial  of  the  obligation. 
They  must  consist  in  an  obligation  to  allow  a  thing  to 
be  done,  or  a  right  to  be  exercised,  or  in  refraining 
from  doing  a  thing ;  they  can  never  consist  in  an  obli- 
gation to  do  a  thing.1  They  are  further  classified  into 
positive  and  negative.  Positive  servitudes  consist  in 

1  Phillimore,  vol.  i.,  p.  236;  Morey,  "Outlines  of  Roman  Law," 
pp.  288-292. 


54  OUTLINES  OF  INTERNATIONAL   LAW. 

allowing  a  thing  to  be  done,  or  a  right  exercised  upon 
the  territory  of  the  servient  state.  Negative  servitudes 
consist  in  refraining  from  the  exercise  of  rights  by  a 
servient  state. 

Examples  of  Servitudes, — The  following  examples  of 
servitudes  created  by  treaty  are  cited  by  Phillimore  : 1 

(1.)  In  the  Treaty  of  Utrecht,  of  1713,  between  Eng- 
land and  France,  it  was  agreed  on  the  part  of  France 
that  the  Stuart  pretenders  should  not  be  permitted  to 
reside  in  French  territory. 

(2.)  In  the  Treaty  of  Utrecht,  between  Spain  and 
England,  the  possession  of  Gibraltar  by  the  latter 
power  was  confirmed  by  Spain  on  condition  that  Moors 
and  Jews  should  not  be  permitted  to  reside  there. 

(3.)  The  Treaty  of  Paris,  of  1814,  provided  that  Ant- 
werp was  to  be  an  exclusively  commercial  port. 

(4.)  By  the  Treaty  of  1831  certain  Belgian  fortresses 
were  to  be  demolished  by  Dec.  1,  1833. 

THE  RIGHT  OF  JURISDICTION. 

14.  Right  of  Territorial  Jurisdiction. — From  the  def- 
inition of  a  sovereign  state  it  follows  that  "  the  jurisdic- 
tion of  a  nation  within  its  own  territory  is  necessarily 
exclusive  and  absolute.  It  is  susceptible  of  no  limita- 
tion not  imposed  by  itself.  Any  restriction  upon  it 
deriving  validity  from  any  external  source  would  im- 
ply a  diminution  of  its  sovereignty  to  the  extent  of  the 
restriction,  and  an  investment  of  that  sovereignty  to 
the  same  extent  in  that  power  which  could  impose 
such  restriction.2 

Classification  of  Jurisdictional  Powers. — This  juris- 

1  Phillimore,  vol.  i.,  p.  236. 

3  Case  of  The  Exchange,  7  Cranch,  116. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          55 

diction  extends  to  all  subjects  and  over  all  persons 
within  its  territorial  limits,  it  matters  not  whether 
those  persons  be  native  born,  or  naturalized  citizens,  or 
aliens.  It  involves  the  right  of  maintaining  any  form 
of  government,  of  administering  that  government  in 
accordance  with  its  own  views  and  methods,  and  of 
changing  it,  whenever  such  a  change  seems  necessary 
or  desirable.  It  implies  the  right  of  classifying  the 
sovereign  powers,  and  of  distributing  them  among  sev- 
eral departments,  or  of  concentrating  all  of  them  in 
the  hands  of  a  single  ruler  or  sovereign.  It  involves 
an  immunity  from  interference,  from  external  sources, 
in  the  enjoyment  and  exercise  of  its  sovereign  powers, 
and  a  corresponding  obligation  to  abstain  from  similar 
interference  in  the  internal  affairs  of  other  states. 

Right  of  Jurisdiction^  in  whom  Vested. — The  right 
of  jurisdiction  is  inherent  in  the  artificial  body  politic 
which  we  call  the  state.  It  is  exercised,  like  other  sov- 
ereign powers,  through  the  government  of  the  state, 
and  the  various  rights  of  jurisdiction  are  usually  clas- 
sified and  distributed  among  the  different  departments 
of  government.  The  jurisdictional  powers  of  a  state 
are  usually  divided  into : 

(a.)  The  Power  to  Make,  Alter,  and  Repeal  Laws. — 
This  is  called  the  legislative  department.  In  states 
which  recognize  the  people  as  the  ultimate  source  of 
sovereignty  this  department  stands  first  in  power  and 
importance.  It  expresses,  more  directly  than  any  oth- 
er, the  sovereign  will  upon  any  question  coming  within 
its  jurisdiction.  It  determines  the  policy  of  the  state 
upon  all  matters  internal  and  external,  and  can  change 
that  policy  at  will.  At  the  other  extreme  He  states  in 
which  the  sovereign  authority  is  held  to  reside  in  the 


56  OUTLINES  OF  INTERNATIONAL  LAW. 

person  of  a  single  ruler  or  sovereign.  Here  the  legis- 
lative department  does  not  exist,  and  the  powers  usu- 
ally exercised  by  it  are  vested  in  the  hands  of  the 
sovereign  or  executive. 

(&.)  The  Power  to  Enforce  and  Execute  the  Laws. — 
This  is  called  the  executive  department.  In  states  which 
recognize  the  principle  of  popular  sovereignty  the  ex- 
ecutive himself  represents  the  people  in  the  exercise  of 
that  class  of  governmental  powers  which  has  to  do 
with  carrying  the  laws  into  effect.  He  is  responsible 
to  them  for  the  manner  in  which  he  performs  his  duty, 
and  either  directly  or  through  his  subordinates  repre- 
sents them  in  all  intercourse  with  foreign  powers.  In 
the  exercise  of  the  powers  which  are  peculiar  to  his 
office  he  is  independent  of  the  other  departments  of  the 
government.  He  also  represents  in  the  highest  degree 
the  dignity  and  majesty  of  the  state ;  an  insult  to  him 
is  an  insult  to  the  state,  and  attacks  directed  against 
his  person  or  authority  are  usually  given  the  character 
of  treason. 

(c.)  The  Power  to  Apply  the  Laws  in  the  Decision  of 
Cases  Arising  under  them. — This  is  called  ihe  judicial 
power.  The  jurisdiction  of  the  courts  of  a  state  is  fur- 
ther classified  into  civil  and  criminal.  The  former 
extends  to  the  decision  of  all  suits  or  controversies 
arising  between  individuals  out  of  contracts,  claims, 
and  services,  as  well  as  from  torts  and  injuries.  The 
latter  includes  the  power  to  try  and  punish  all  offences 
against  the  state  or  its  sovereign  representative,  or 
against  society  or  the  individuals  who  compose  it. 

Exclusive  Jurisdiction,  where  Exercised. — This  right 
of  jurisdiction  is  exclusive  in  all  cases  arising  within 
the  territorial  limits  of  a  state,  or  upon  its  public  or 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          57 

private  vessels  on  the  high  seas.  It  is  of  the  most 
comprehensive  character,  and,  within  the  territorial 
limits  as  above  described,  no  offence  can  be  committed, 
no  act  be  done,  no  occasion  arise  for  governmental  in 
terference  of  any  kind  that  will  not  fall  within  the  ju- 
risdiction of  some  branch  or  department  of  the  gov- 
ernment of  the  state,  or  over  which  that  jurisdiction 
will  not  be  final  and  exclusive. 

Extra-territorial  Jurisdiction  of  a  State. — Under  cer- 
tain circumstances  a  state  may  exercise  jurisdiction 
over  its  subjects  beyond  its  strict  territorial  limits. 
This  extension  of  jurisdiction  is  sanctioned  in  the  fol- 
lowing cases : 

(«.)  Over  the  officers  and  crews  of  its  ships  of  war, 
wherever  they  may  be.  They  are  a  part  of  the  public 
armed  force  of  the  state,  and  are  governed  by  a  special 
code  of  laws  and  regulations. 

(&.)  Over  its  merchant  vessels  on  the  high  seas.  The 
crews  of  these  vessels  are  subject  to  the  admiralty  juris- 
diction of  the  state  whose  register  they  carry.  This 
extends  to  all  cases  of  a  civil  or  criminal  character  oc- 
curring on  the  high  seas  or  beyond  the  jurisdiction  of 
any  civilized  state.  Merchant  vessels  on  the  high  seas 
are,  for  purposes  of  jurisdiction,  acknowledged  to  be  a 
part  of  the  territory  of  the  state  to  which  they  belong, 
and  under  whose  flag  they  sail.  From  this  principle 
it  follows  that,  in  time  of  peace,  these  ships  are  exempt 
from  visitation  and  search  by  foreign  vessels  of  war,1 
except  in  strict  accordance  with  treaty  stipulations. 
They  are  subject  to  such  visitation  and  examination 
at  sea  by  public  armed  vessels  of  their  own  nation 

1  See  case  of  the  Laconia,  ' '  United  States  Foreign  Relations,"  1879, 
pp.  415,  432. 


58  OUTLINES  OF  INTERNATIONAL  LAW. 

as  is  authorized  by  the  municipal  law  of  the  state 
to  which  they  belong.  The  right  of  search  in  time 
of  war  is  a  belligerent  right,  and  will  be  discussed 
hereafter. 

So  soon,  however,  as  a  merchant  ship  enters  a  for- 
eign port,  it  is  subject  in  every  respect  to  the  municipal 
laws,  and  especially  to  the  criminal  jurisdiction  of  the 
country  in  which  the  port  is  situated.  "  For  any  unlaw- 
ful acts  done  by  her  while  thus  lying  in  the  port  of  a 
foreign  state,  and  for  all  contracts  entered  into  while 
there,  by  her  master  or  owners,  she  is  made  answerable 
to  the  laws  of  the  place.  JSTor,  if  her  master  or  crew, 
while  on  board  in  such  port,  break  the  peace  of  the 
community  by  the  commission  of  crimes,  can  exemp- 
tion from  the  local  laws  be  claimed  for  them.  But  the 
comity  and  practice  of  nations  have  established  the 
rule  of  International  Law  that  such  vessel,  so  situated, 
is,  for  the  general  purpose  of  governing  and  regulating 
the  rights,  duties,  and  obligations  of  those  on  board,  to 
be  considered  as  a  part  of  the  territory  of  the  nation 
to  which  she  belongs.  It  therefore  follows,  that,  with 
respect  to  facts  happening  on  board  which  do  not  con- 
cern the  tranquillity  of  the  port,  or  persons  foreign  to 
the  crew,  or  acts  committed  on  board  while  such  ves- 
sel was  on  the  high  seas,  are  not  amenable  to  the  ter- 
ritorial justice.  All  such  matters  are  justiciable  only 
by  the  courts  of  the  country  to  w^hich  the  vessel  be- 
longs." '  The  practice  of  France  in  this  respect  dif- 
fers from  that  of  most  modern  nations.  She  declines 
to  allow  her  courts  to  take  jurisdiction  over  crimes 
committed  by  one  member  of  the  crew  upon  an- 

2  Halleck,  vol.  i.,  pp.  190,  191;  Masse,   "Droit   Commercial," 
tome  ii.,  §§  31-44. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.  59 

other,  on  board  a  foreign  merchant  vessel  in  her  har- 
bors. If  a  French  subject  be  the  injured  party,  how- 
ever, the  French  courts  will  take  jurisdiction  of  the 
case. 

(c.)  Over  its  armies  in  the  field,  when  beyond  the 
limits  of  its  territorial  jurisdiction.  The  officers  and 
enlisted  men  of  the  army,  like  the  corresponding  per- 
sons in  the  navy,  are  a  part  of  the  public  armed  force, 
and  are  governed  at  home  and  abroad  by  a  special  code 
of  laws  and  regulations. 

(d.)  Over  crimes  committed  by  its  subjects  in  territo- 
ry occupied  by  savages,  or  unoccupied,  and  not  claimed 
by  any  civilized  power.  If  this  jurisdiction  were  not 
assumed  such  crimes  as  kidnapping,  engaging  in  the 
slave  trade,  etc.,  would  go  unpunished.  For  this  rea- 
son most  states,  in  their  municipal  laws,  provide  for 
their  trial  and  punishment. 

(<?.)  Over  the  crime  of  piracy,  by  whomsoever  com- 
mitted, on  the  high  seas,  or  on  land  without  the  juris- 
diction of  any  civilized  state. 

THE  PRINCIPLE  OF  EXTERRITORIALITY. 
15.  Definition  and  Origin.— ~bn.  a  limited  number  of 
cases  states  permit  the  jurisdiction  of  other  states  to  be 
exercised  within  their  territory.  This  is  called  the  prin- 
ciple of  exterritoriality.  It  is  a  fiction  of  law,  invented 
to  explain  certain  immunities  and  exemptions  from  the 
local  law,  which  are  recognized  by  all  nations  in  their 
dealings  with  each  other.  It  does  not  explain  all  of 
the  circumstances  that  may  arise  in  any  of  the  cases  to 
which  it  is  applied,  but  it  accounts  for  many,  or  most 
of  them,  more  satisfactorily  than  does  any  other  meth- 
od of  treatment  that  has  been  proposed. 


60  OUTLINES  OF  INTERNATIONAL  LAW. 

From  the  definition  of  a  sovereign  state  it  is  seen 
that  such  an  exercise  of  jurisdiction  can  only  be  pos- 
sible with  the  tacit  or  express  consent  of  the  state 
within  whose  territory  it  is  exercised.  It  is  therefore 
based  upon  comity,  and  is  held  to  apply  in  the  follow- 
ing cases : 

(1.)  To  Ships  of  War  in  Foreign  Ports. — It  has  been 
shown  that  the  war  vessels  of  a  state,  while  on  the 
high  seas,  are,  like  those  of  its  merchant  marine,  sub- 
ject only  to  the  law  of  the  state  under  whose  flag  they 
sail.  By  the  general  consent  of  nations  this  immunity 
from  local  jurisdiction  is  extended,  in  the  case  of  pub- 
lic armed  vessels,  to  cover  the  period  of  their  sojourn 
in  the  ports  or  other  territorial  waters  of  a  foreign 
state.  There  has  been  considerable  discussion  as  to 
whether  the  exemption  accorded  to  ships  of  war  can 
be  claimed,  as  a  matter  of  strict  right,  or  is  based  upon 
the  comity  of  nations.  The  latter  view  is  now  gen- 
erally accepted.  The  Board  of  Arbitration  in  the  Ge- 
neva case  ruled  that  "  the  privilege  of  exterritoriality 
accorded  to  vessels  of  war  has  been  admitted  into  the 
Law  of  Nations ;  not  as  an  absolute  right,  but  solely 
as  a  proceeding  founded  on  the  principles  of  courtesy 
and  mutual  deference  between  different  nations." '  In 
this  view  Phillimore  and  Story  agree.2 

"  If  for  reasons  of  state  the  ports  of  a  nation  gen- 
erally, or  any  particular  ports,  be  closed  against  ves- 
sels of  war  generally,  or  the  vessels  of  war  of  any 
particular  nation,  notice  is  usually  given  of  such  de- 
termination. If  there  is  no  such  prohibition  the 
ports  of  a  friendly  nation  are  considered  as  open  to 

1  "Decision  Geneva  Board,"  p.  184. 

2  The  "Santissima  Trinidad,"  7  Wheaton,  283. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.  61 

the  public  ships  of  war  of  all  powers  with  whom  it  is 
at  peace." ' 

War  vessels  are  subject  to  the  jurisdiction  of  the  port 
in  matters  of  quarantine,  and  are  required  to  obey  the 
local  revenue  laws  and  the  port  regulations  on  the  sub- 
ject of  anchorage,  lights,  and  harbor  police.2  They 
may  be  compelled,  by  force  if  need  be,  to  observe  such 
regulations  as  may  be  deemed  necessary,  by  the  state 
in  whose  ports  they  may  be,  for  the  maintenance  of 
its  neutrality. 

The  privilege  of  exterritoriality  does  not  apply  to 
members  of  the  ship's  company  on  shore.  The  local 
laws  apply  to  them,  under  such  circumstances,  as  fully 
and  strictly  as  to  any  citizen  of  the  state,  or  to  any 
foreign  sojourner.  Crimes  committed  by  officers  of  a 
public  armed  vessel  or  by  members  of  its  crew  on 
shore,  therefore,  may  not  only  be  judicially  noticed  by 
the  local  tribunals,  but  may  be  made  the  subject  of 
complaint  in  the  diplomatic  way." 

In  this  connection  a  question  arises  as  to  the  duty  of 
the  captain  of  a  public  armed  vessel  in  the  matter  of 
surrendering  a  criminal  who  has  taken  refuge  on  board 
his  ship  in  a  foreign  port.  TJie  present  rule  is  that, 
upon  proper  application  by  the  local  authority,  it  shall 
be  the  duty  of  the  commanding  officer  to  surrender 
such  criminal.  The  privilege  of  exterritoriality  rests 
upon  comity,  and  a  nation  may,  for  good  reason,  de- 

1  Cranch's  Reports,  vol.  vii.,  p.  141. 

9  Halleck,  vol.  i.,  pp.  188,  189. 

3  Bluntschli,  "LeDroit  International  Codifie,  "liv.  iv.,§  321;  Pin- 
heiro  Ferreira,  "  Cours  de  Droit  Public,"  tit.  ii.  art.  xviii.,  §  50;  Haute- 
femile,  "Droit  des  Nations  Neutres,"  tome  ii.,  art.  vi. ;  Halleck, 
vol.  i.,  p.  190. 


62  OUTLINES  OF  INTERNATIONAL  LAW. 

cline  to  extend  it  to  foreign  vessels  of  war  visiting  its 
harbors.  If  it  may  decline  to  extend  it  at  all,  it  may 
grant  it  subject  to  restrictions  imposed  by  itself,  such  re- 
strictions being  reasonable  in  character  and  generally 
known.  "  The  essence  of  the  privilege  of  ships  of  war  in 
foreign  territorial  waters  is,  that  the  commanding  offi- 
cer is  permitted  to  exercise  freely,  and  without  inter- 
ference, on  board  his  ship  the  authority  which,  by  the 
law  of  his  own  country,  he  has  over  the  ship's  company. 
This  permission  is  tacitly  given  by  the  very  fact  that  the 
ship  of  war  is  allowed  to  enter  foreign  territorial  wa- 
ters. It  implies  an  undertaking  on  the  part  of  the 
local  sovereign  to  abstain  from  all  interference  between 
the  commanding  officer  and  the  ship's  company  brought 
by  him  into  the  territorial  waters ;  for,  if  there  were  no 
such  understanding,  the  privilege  might  be  rendered 
illusory  by  the  institution  of  inquiries,  on  the  result  of 
which  the  commanding  officer's  authority  over  the 
ship's  company  would  depend."  '  Such  being  the  ori- 
gin and  extent  of  the  privilege,  "  no  state  can  be  sup- 
posed, by  permitting  a  foreign  ship  of  war  to  enter  its 
harbors,  to  have  consented  that  its  own  subjects  should 
be  able  to  free  themselves  from  its  own  laws  by  going 
on  board  the  ship.  It  may,  perhaps,  be  inferred  from 
such  a  permission,  that  the  state  which  gave  it  meant, 
in  certain  cases,  to  rely  for  the  due  observance  of  its 
laws  upon  the  assistance  and  good  offices  of  the  officers 
of  the  ship ;  but  that  is  quite  a  different  matter  from 
giving  up  the  laws  themselves."  *  In  the  correspond- 
ing case  of  a  criminal  seeking  asylum  in  the  hotel  of 
an  ambassador,  his  surrender  may  be  demanded,  and 

1  Stephens,  "History  of  the  Criminal  Law  of  England,"  vol.  ii., 
p.  49.  a  Ibid.  p.  48. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          53 

if  the  demand  be  not  complied  with  he  may  be  ex- 
tracted by  force.  It  has  never  been  claimed  that  the 
principle  of  exterritoriality  applied  with  more  or 
greater  force  to  a  ship  of  war  than  to  the  hotel  of  an 
ambassador.  Indeed,  the  contrary  is  the  case.1  Should 
the  surrender  of  a  criminal  be  demanded  and  refused, 
the  weight  of  opinion  is  that  force  may  not  be  used  to 
gain  possession  of  the  offender.  Resort  must  be  had 
to  diplomatic  means,  to  reprisals,  or,  in  the  last  resort, 
to  war.2 

(2.)  To  the  Passage  of  Troops  through  the  Territory 
of  a  Foreign  State. — This  practice  was  much  more  fre- 
quent in  former  times  than  it  is  at  present.  The  in- 
creasing strictness  with  which  the  rules  of  neutrality 
are  now  observed  has  rendered  the  practice  obsolete  in 
war,  and  the  generally  cherished  desire  to  avoid  inter- 
national complications,  by  removing  one  of  the  most 
fruitful  causes  of  international  misunderstanding,  has 
contributed  powerfully  to  diminish  its  frequency  in 
time  of  peace.  Permission  for  such  movements  is  now 
rarely  accorded,  save  in  very  exceptional  cases — as  to 
an  ally  in  war,  or  as  an  act  of  courtesy  or  humanity 
in  time  of  peace.  In  the  few  instances  in  which  it  is 
permitted,  the  conditions  of  the  movement  are  ar- 
ranged, with  great  minuteness  of  detail,  in  a  prelimi- 
nary treaty. 

1  Kent  holds  that  the  writ  of  habeas  corpus  may  be  served  on  board 
a  foreign  vessel  of  war  in  the  territorial  waters  of  the  United  States. 
Abdy's  Kent,  p.  396.     The  Attorney-general  of  the  United  States 
held,  in  1794,  that  civil  and  criminal  processes  could  be  served  on 
board  such  ships.  ' '  Opinions  Attorneys-general  of  the  United  States, " 
vol.  i.,  pp.  25,  27,  55,  56. 

2  Stephens,  "History  of  the  Criminal  Law  of  England,"  vol.  ii., 
pp.  48,  54-56. 


64:  OUTLINES  OF  INTERNATIONAL  LAW. 

The  practice  is  disfavored,  but  not  absolutely  forbid- 
den, by  international  law.  The  outbreak  of  war,  there- 
fore, or  the  existence  of  an  emergency,  may  make  it 
necessary  to  resort  to  it  at  any  time.  Should  such 
a  case  occur,  the  principle  of  exterritoriality  would 
apply  to  a  movement  of  troops  through  foreign  terri- 
tory in  the  same  way,  and  to  the  same  extent,  that  it 
is  applied  in  the  admission  of  a  ship-of-war  to  a  foreign 
port.  Its  application  would  be  attended  with  greater 
difficulty,  however,  arising  in  part  out  of  the  character 
of  the  act  itself,  and  in  part  from  the  occurrence  of  cir- 
cumstances, during  the  passage,  which  could  not  be  pro- 
vided for  in  advance.  This  would  be  especially  true  if 
the  movement  were  effected  by  marching,  and  not  by 
railway  or  steamer. 

The  moving  force  is  governed,  in  transit,  by  the  mil- 
itary laws  and  army  regulations  of  its  own  government, 
with  such  additional  restrictions  as  may  be  stipulated 
to  be  observed  in  the  treaty  or  agreement  authorizing 
the  passage.  Offences  committed  along  the  line  of 
march  are  tried  by  courts-martial,  or  are  punished 
summarily,  when  the  offending  and  injured  persons 
belong  to  the  moving  force.  If  the  parties  injured  be 
citizens  of  the  district  traversed,  the  trial  and  punish- 
ment of  the  offenders  would  be  arranged  for  by  treaty. 
As  such  offences  have  a  peculiarly  aggravated  charac- 
ter, they  should  be  more  severely  dealt  with  than  if 
committed  at  home.  Questions  of  purchasing  supplies 
in  the  country  passed  through  are  strictly  regulated 
by  treaty,  as  are  similar  questions  arising  as  to  the 
quartering  of  troops,  the  passage  of  ferries  and  bridges, 
and  the  use  of  wells  or  other  sources  of  water  supply. 
When  such  movements  are  made,  as  it  is  impossible  to 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          (55 
% 

foresee  and  provide  for  all  cases  of  injury  and  damage 
that  may  occur,  it  is  proper  to  provide,  in  the  prelim- 
inary treaty,  for  the  indemnification  of  injured  par- 
ties, by  permitting  their  claims  to  be  submitted  in  the 
diplomatic  way,  or  by  arranging  for  the  organization  of 
a  commission  having  power  to  investigate  such  claims, 
and  to  determine  the  amount  of  damage  sustained, 
with  a  view  to  its  being  liquidated  by  the  government 
through  whose  agents  it  was  inflicted. 

(3.)  To  the  Person  of  a  Sovereign,  his  Retinue  and 
Attendants,  while  Passing  through  or  Sojourning  in 
Foreign  Territory. — There  are  numerous  instances  of 
such  royal  visits,  and  the  practice  of  making  them 
bids  fair  to  continue  in  existence,  if,  indeed,  it  does 
not  become  more  frequent  than  formerly.  At  the 
present  time  such  visits  are  not  attended  by  the  polit- 
ical significance  which  formerly  attached  to  them. 
They  are  either  made  with  great  formality — as  when 
a  visit  of  ceremony  is  made  or  returned,  or  a  confer- 
ence of  sovereigns  is  arranged,  with  a  view  to  an  ex- 
change of  opinions  upon  some  matter  of  serious  inter- 
national concern — or  they  may  have  an  entirely  private 
and  informal  character,  the  visiting  sovereign  waiving 
many  of  the  honors  and  privileges  to  which  he  is  enti- 
tled in  his  sovereign  character. 

If  the  consent  of  the  sovereign  whose  territory  is  vis- 
ited has  been  formally  given,  such  consent  is  held  to 
confer  the  privilege  of  exterritoriality.  The  visiting 
sovereign  is  permitted  to  exercise  his  functions  as  if  he 
were  still  in  his  own  dominions ;  and  he  may  do  any 
act  which  he  is  authorized  to  do  by  the  laws  of  his 
own  state,  and  which  is  not  so  repugnant  to  the  law 
of  the  territory  in  which  he  is  as  to  be  forbidden  to 
5 


66  OUTLINES  OF  INTERNATIONAL  LAW. 

be  exercised  by  its  sovereign.  Such  acts,  however,  are 
presumed  to  have  effect  only  within  his  own  territory, 
and  upon  his  own  subjects.  His  control  over  his 
suite  is  not  impaired,  and  their  responsibility  to  him 
is  in  no  way  affected,  by  the  fact  of  absence.  What- 
ever articles  of  personal  or  movable  property  are  car- 
ried with  him  enter  the  foreign  state  without  inspec- 
tion or  payment  of  duty,  and  are  exempt  from  taxation 
and  imposts  of  all  kinds  during  his  sojourn  there.  In 
all  other  respects  the  privilege  of  exterritoriality  ap- 
plies to  a  sovereign,  and  to  his  retinue  and  train,  in 
precisely  the  same  manner,  and  to  the  same  extent, 
that  it  does  to  an  ambassador  and  his  retinue. 

Should  a  person  of  sovereign  rank  enter  the  territory 
of  a  foreign  state  without  the  permission  of  its  sov- 
ereign or  executive  authority,  he  is  conceded  most  of 
the  immunities  that  are  extended  to  him  when  such 
consent  has  been  obtained.  The  circumstances  under 
which  such  visits  are  made  may  be,  and  frequently  are, 
so  peculiar  and  exceptional  as  to  make  it  impossible 
to  lay  down  any  definite  rules  on  the  subject.  If  the 
presence  of  such  a  person  is  dangerous  to  the  safety 
of  a  state,  or  involves  its  neutral  obligations  in  any 
way,  or  is  offensive  to,  or  threatens  its  relations  with, 
friendly  powers,  asylum  may  be  refused,  and  the  visit- 
ing sovereign  may  be  forbidden  to  exercise  any  of  his 
functions,  or  to  maintain  a  correspondence  with  persons 
in  his  own  state,  and  he  may  even  be  compelled  to 
quit  the  territory.  If  no  such  consequences  ensue,  or 
are  likely  to  ensue,  tl\e  visit  differs  in  no  important  re- 
spect, in  so  far  as  the  application  of  the  principle  of 
exterritoriality  is  concerned,  from  one  made  with  the 
consent  of  the  sovereign  of  the  visited  territory. 


STATES  AND  THEIR  ESSENTIAL  ATTRIBUTES.          £7 

(4.)  To  Ambassadors  and  Public  Ministers. — To  the 
efficient  and  successful  performance  of  an  ambassador's 
duties,  it  is  necessary  that  his  person  should  be  held 
inviolate,  and  that  he  should  be  entirely  free  from  re- 
sponsibility to  the  government  to  which  he  is  accred- 
ited. Without  such  freedom  of  movement  and  action 
it  would  be  impossible  for  him  to  adequately  represent 
his  own  government,  or  effectively  interfere  in  behalf 
of  his  fellow-subjects.  This  principle  of  inviolability 
and  immunity  has  been  recognized  by  all  Christian 
states  since  permanent  legations  were  first  established 
in  Europe,  in  the  fourteenth  century.  It  is  now  so 
universally  conceded  as  not  to  admit  of  question  or 
discussion. 

"  "Whatever  may  be  the  principle  upon  which  this 
immunity  is  established,  whether  we  consider  '  the  am- 
bassador' as  in  the  place  of  the  sovereign  he  repre- 
sents, or,  by  a  political  fiction,  suppose  him  to  be  extra- 
territorial, and  therefore,  in  point  of  law,  not  within 
the  jurisdiction  of  the  sovereign  at  whose  court  he 
resides,  still  the  immunity  itself  is  granted  by  the  gov- 
erning power  of  the  nation  to  which  the  minister  is 
deputed.  This  fiction  of  exterritoriality  could  not  be 
erected  and  supported  against  the  will  of  the  sovereign 
of  the  territory.  He  is  supposed  to  assent  to  it." ' 

The  subject  will  be  more  fully  discussed  in  the  chap- 
ter devoted  to  the  privileges  and  immunities  of  am- 
bassadors. 

(5.)  To  Consuls  and  to  Foreign  Residents  in  Certain 
Eastern  Countries. — From  the  beginning  of  intercourse 
with  the  Mohammedan  nations  inhabiting  the  south- 

1  Case  of  the  Exchange,  7  Cranch,  pp.  116,  138. 


68  OUTLINES  OF  INTERNATIONAL  LAW. 

ern  and  eastern  coasts  of  the  Mediterranean  Sea  it  has 
been  found  necessary,  by  reason  of  the  radical  differ- 
ence between  their  legal  and  religious  systems  and 
those  prevailing  among  the  Christian  nations  of  Eu- 
rope, to  withdraw  from  the  operation  of  the  local  laws 
such  subjects  of  the  latter  powers  as  were  obliged,  on 
account  of  their  business  or  official  character,  to  reside 
in  the  Levantine  ports  and  commercial  cities.  These 
exemptions  have  been  obtained  in  every  case  by  treaty 
stipulations  or  concessions,  and  they  are  enlarged  and 
modified,  from  time  to  time,  in  the  same  manner. 
When  intercourse  became  general  with  China  and  Ja- 
pan similar  concessions  were  obtained  in  behalf  of  the 
subjects  of  the  principal  commercial  nations  of  Eu- 
rope and  America,  The  subject  will  be  treated  at 
length  under  the  head  of  Consular  Jurisdiction. 

References. — The  theory  of  state  sovereignty  and  jurisdiction  is 
derived  directly  from  the  Roman  Law.  Upon  the  application  of 
that  theory  to  the  mutual  relations  of  states  is  based  the  claim  of 
Grotius  to  the  honor  of  being  the  founder  of  the  modern  science. 
The  first  edition  of  his  work,  "  De  Jure  Belli  et  Pacis,"  was  pub- 
lished in  Paris  in  1625.  It  has  been  translated  into  almost  all  of 
the  modern  languages  of  Europe.  The  last  French  edition  ap- 
peared in  1864.  An  English  translation  appeared  in  1738.  The 
usual  English  edition,  however,  is  that  of  Dr.  Whewell,  which  was 
published  in  1853.  The  classification  of  the  powers  of  govern- 
ment is  of  quite  recent  origin,  and  can  be  studied  to  advantage  in 
the  constitutions  of  modern  states.  See  Cooley's  "  Constitutional 
Law,"  Cooley's  edition  of  "  Story's  Commentaries,"  and  Holrnes's 
edition  of  Kent  tor  the  United  States.  For  England,  see  Stubbs's 
"  Constitutional  History,"  Bagehot's  "  English  Constitution,"  and 
the  works  of  Hallam,  Amos,  and  Maine.  The  rules  regarding  ter- 
ritory and  territorial  jurisdiction  are  largely  adopted  from  the 
Civil  Law.  The  principle  of  servitudes  is  of  similar  origin,  al- 
though in  the  doctrine  of  easements  a  modified  form  of  the  prin- 


STATES  AND   THEIR  ESSENTIAL  ATTRIBUTES.         $9 

ciple  is  known  to  the  Common  Law.  For  an  account  of  the  Law 
of  Servitudes,  see  Morey,  "  Outlines  of  the  Roman  Law,"  pp.  289- 
292 ;  Phillimore,  vol.  i.,  pp.  330-332.  For  the  subject  of  the  High 
Seas  and  the  freedom  of  the  sea,  see  Grotius, "  Mare  Liberum," 
written  in  reply  to  Selden's  "  Mare  Clausum."  See,  also,  Azuni, 
vol.  i.,  chaps.  i.-iii. ;  Phillimore,  vol.  i.,  pp.  209-224 ;  Vattel,  chap, 
xxiii.,  §§  279-294 ;  Heffter,  pp.  146-148 ;  Martens,  G.  F.  De,  §  43 ; 
and  §  18  of  Wheaton's  "History  of  the  Law  of  Nations."  The 
fiction  of  exterritoriality  is  fully  discussed  in  Halleck,  chap,  vii., 
§§  24,  25;  Boyd's  Wheaton,  pp.  139,  140;  Heffter,  pp.  86-90; 
Creasy,  pp.  176-190,  and  p.  686. 


CHAPTEK  III. 

PERFECT  AND   IMPERFECT   RIGHTS. 

1.  Perfect  Rights.  —  The  essential  attributes  of  a 
state  have  been  defined  to  be  those  of  sovereignty, 
independence,  and  equality.  Any  state  right  fairly 
deducible  from  any  one  of  these,  or  from  all  of  them, 
is  a  perfect  right.  The  denial  of  a  perfect  right,  there- 
fore, constitutes  an  invasion  of  the  sovereignty  of  the 
offended  state,  justifying,  if  not  atoned  for,  forcible 
measures  of  redress.  If  the  sovereign  rights  of  a  state 
can  be  denied,  trespassed  upon,  or  invaded  in  one  re- 
spect, they  can  in  all  respects,  and  its  sovereignty 
and  independence  would  be  abridged,  and  finally  lost, 
by  such  repeated  invasions  or  denials.  For  these  rea- 
sons the  rule  has  received  universal  sanction  that  the 
perfect  rights  of  a  state  can  be  drawn  in  question  or 
denied  only  at  the  risk  of  war. 

The  perfect  rights  of  a  state  are  susceptible  of  clas- 
sification under  one  of  two  heads. 

First.  The  right  of  a  state  to  a  free  and  independent 
existence  within  its  territorial  limits. 

Second.  The  right  to  be  respected  as  a  sovereign 
state  in  its  intercourse  with  other  states.1 

Some  of  the  more  essential  of  the  perfect  rights  and 
duties  of  states  are : 

(a.)  The  Right  of  Self-preservation.  —  This  is  called 

1  Heffter,  pp.  47,  48. 


PERFECT  AND   IMPERFECT  RIGHTS.  ft 

into  being  whenever  the  corporate  existence  of  a  state 
is  menaced.  It  corresponds  to  the  individual  right  of 
self-defence.  The  danger  may  be  internal,  as  in  the 
case  of  insurrection  or  rebellion,  or  external,  as  in  the 
case  of  invasion,  either  real  or  threatened.  "  The  right 
of  self-preservation  is  the  first  law  of  nations,  as  it  is 
of  individuals.  A  society  which  is  not  in  condition  to 
repel  aggression  from  without  is  wanting  in  its  prin- 
cipal duty  to  the  members  of  which  it  is  composed,  and 
to  the  chief  end  of  its  institution.  All  means  which  do 
not  affect  the  independence  of  other  nations  are  lawful 
to  this  end.  No  nation  has  a  right  to  prescribe  to  an- 
other what  these  means  shall  be,  or  to  require  any  ac- 
count of  her  conduct  in  this  respect." 1 

In  the  exercise  of  this  right  a  state  organizes  its  land 
and  naval  forces  in  time  of  peace  or  war,  maintains 
them  at  such  strength  as  it  may  deem  adequate  to  the 
national  defence,  and  protects  its  coasts,  harbors,  and 
land  frontiers  by  such  works  of  defence  as  it  may  deem 
necessary  to  secure  them  from  attack.  The  military 
establishment  that  is  maintained  by  any  particular 
state  is  determined  by  its  institutions,  its  military  pol- 
icy, the  character  of  its  foreign  relations,  and,  to  some 
extent,  by  its  financial  resources.  Any  limitation  upon 
such  establishments  must  be  strictly  internal  in  char- 
acter. External  dictation  in  such  matters  is  ordina- 
rily not  permissible.  "  Armaments  suddenly  increased 
to  an  extraordinary  amount,"  however, "  are  calculated 
to  alarm  other  nations,  whose  liberty  they  appear  to 
menace.  It  has  been  usual,  therefore,  to  require  and 
receive  amicable  explanations  of  such  warlike  prepara- 

1  Phillimore,  vol.  i.,  p.  252. 


72  OUTLINES  OF  INTERNATIONAL  LAW. 

tions ;  the  answer  will,  of  course,  much,  depend  upon 
the  tone  and  spirit  of  the  requisition." ' 

The  assertion  of  the  right  of  self-preservation  on  the 
part  of  a  state  involves  the  duty  of  recognizing  the  same 
right  in  other  states.  If  a  state  resents  invasion  of  its 
sovereign  rights,  it  is  bound  to  respect  the  territory  and 
rights  of  other  states.  It  cannot  invade  them  itself,  nor 
can  it  permit  its  subjects,  or  others  within  its  jurisdic- 
tion, to  use  its  territory  as  a  base  of  hostile  operations 
against  a  state  with  which  it  is  at  peace.  Its  power  and 
responsibility  are  equal,  and  it  cannot  plead  its  weak- 
ness, or  the  insufficiency  of  its  municipal  laws,  when- 
ever such  hostile  attempts  originate  within  its  juris- 
diction. 

(&.)  The  Duty  of  a  State  to  Protect  its  Citizens  or 
Subjects. — It  is  a  fundamental  maxim  of  government 
that  every  citizen  owes  a  duty  of  defence  to  his  coun- 
try in  time  of  public  danger.  In  return,  the  citizen  is 
entitled  to  the  protection  of  his  government,  in  person 
or  property,  against  insult  and  aggression  of  every  sort. 
This  protection  surrounds  him  at  home,  and  follows 
him  wherever  he  may  travel  or  reside. 

Such  injuries  may  be  committed :  1.  When  a  state, 
through  its  officers  or  duly  authorized  agents,  acts 
directly  against  the  subject  of  a  foreign  state,  in  viola- 
tion of  international  law.  2.  When  a  state  acts  indi- 
rectly, by  failing  to  secure  adequate  remedies  to  stran- 
gers who  have  been  injured  by  individuals  within  its 
jurisdiction.2  In  either  case  it  is  the  right  and  duty 
of  the  offended  state  to  protect  its  subjects  in  foreign 
parts  by  every  means  authorized  by  International  Law. 

1  Phillimore,  vol.  i.,  p.  253.  a  Heffter,  p.  120. 


PERFECT  AND  IMPERFECT  RIGHTS.        f3 

It  does  not  follow  that  every  case  of  aggression  of  this 
kind  must  of  necessity  result  in  war.  If  an  individual 
subject  have  a  cause  of  complaint  against  a  foreign 
state  he  makes  proper  representations  to  his  own  gov- 
ernment. The  case  is  investigated,  and,  if  the  com- 
plaint is  found  to  be  well  grounded,  redress  is  demand- 
ed in  the  diplomatic  way.  It  is  only  when  the  cause 
of  complaint  is  unusually  serious,  or  when  redress  has 
been  refused  or  needlessly  delayed,  that  recourse  is  had 
to  hostile  methods  in  order  to  obtain  justice. 

Citizens  of  one  country  travelling  or  resident  in  an- 
other are  not  only  subject  to  the  local  laws,  they  are 
bound  to  observe  them  in  good  faith  and  in  every  de- 
tail. They  are  not  entitled  to  the  protection  of  their 
own  government  when  their  conduct  has  been  such  as 
to  amount  to  a  violation  of  such  local  laws.  "  It  is  a 
perfectly  well-understood  principle  of  law  that  no  cit- 
izen of  a  foreign  nation — excepting,  perhaps,  in  certain 
cases,  a  representative  clothed  with  diplomatic  privi- 
leges— is  free  from  the  obligation  of  conforming  him- 
self to  the  laws  of  the  country  in  which  he  is  resid- 

ing-"1 

(c.)  The  Right  of  Reputation, — This  right  presents 
itself  in  two  aspects.  1st.  A  state  is  entitled  to  re- 
spect as  to  its  internal  affairs.  This  includes  the  recog- 
nition of  its  government  and  institutions,  of  the  meth- 
ods and  agencies  by  which  that  government  is  main- 
tained and  administered,  and  of  the  officers  who  com- 
pose it,  each  in  his  proper  function,  from  highest  to 
lowest.  2d.  A  state  is  entitled  to  respect  as  an  inde- 
pendent body  politic,  and  as  a  member  of  the  great 

1  Mr.  Adams's  Statement  in  the  Geneva  Case.    Creasy,  p.  157. 


74;  OUTLINES  OF  INTERNATIONAL  LAW. 

family  of  states  in  which  all  nations  have  equal  rights. 
From  this  point  of  view  a  state  may  be  regarded  as  a 
moral  being,  capable  of  acquiring  and  enjoying  a  good 
reputation;  entitled,  by  right,  to  immunity  from  in- 
sult or  injury  to  such  reputation,  and  liable  to  the  ob- 
ligation of  respecting  the  reputation  of  other  states. 
It  is,  therefore,  its  duty  to  resent  insults  offered  to  its 
moral  dignity,  to  its  flag,  which  is  the  visible  symbol 
of  its  majesty  and  power,  and  to  the  ministers  or  pub- 
lic officials  who  represent  it  abroad. 

(d.}  The  Duty  of  Non-interference.  —  As  states  are 
entitled  to  a  complete  immunity  from  interference  in 
their  internal  concerns,  a  corresponding  duty  devolves 
upon  them  to  refrain  from  interfering  in  the  internal 
affairs  of  other  states.  This  is  called  the  duty  of  non- 
interference. JSTo  occasion  less  urgent  than  self-pres- 
ervation, or  the  infringement  of  treaty  stipulations,  can 
justify  such  acts  of  interference. 

(<?.)  The  Enforcement  of  Treaty  Stipulations. — Trea- 
ties are  voluntary  engagements  entered  into  by  sove- 
reign states,  by  which  mutual  duties  and  obligations 
are  created  or  defined.  They  convert  imperfect  into 
perfect  rights,  and  so  the  violation  of  a  treaty  stipula- 
tion may  afford  just  cause  for  war. 

{f.}  The  Right  of  Interference. — In  international  af- 
fairs non-interference  is  the  rule,  interference  the  excep- 
tion. This  follows  from  the  definition  of  state  sove- 
reignty and  independence.  The  recognition  of  any 
other  rule  would  strike  at  the  very  foundation  of  In- 
ternational Law,  and  would  render  the  maintenance 
of  general  peace  impossible.  For  this  reason  the  right 
of  interference  is  denied  save  in  certain  extremely  ex- 
ceptional cases,  in  which  the  circumstances  must  be 


PERFECT  AND  IMPERFECT  RIGHTS.        f5 

of  such  a  character  as  not  only  to  justify  that  course, 
but  to  render  the  adoption  of  any  other  impossible. 

The  instances  of  such  interference,  in  history,  are 
but  too  frequent.  In  a  vast  majority  of  cases  they 
have  not  been  justified  by  existing  facts,  and  have  led 
to  results  in  every  way  more  deplorable  than  those 
which  they  were  intended  to  prevent.  "  The  list  in- 
cludes the  invasion  of  Holland  by  the  Prussians  in  1787, 
to  restore  to  his  old  prerogatives  as  stadtholder  the 
Prince  of  Orange,  who  was  brother-in-law  to  the  Prus- 
sian king.  It  includes  the  infamous  and  pernicious 
attacks  on  Poland  by  Austria,  Prussia,  and  Russia, 
the  invasion  of  France  in  behalf  of  Louis  XYI.  by  the 
Prussians  and  Austrians  in  1791,  and  the  interference 
of  the  Holy  Alliance  with  the  popularized  governments 
of  Spain,  Naples,  Sicily,  and  Piedmont,  in  1820  and 
the  three  following  years.  The  historical  student  of 
these  transactions  will  be  fully  qualified  to  form  a 
judgment  as  to  whether  such  proceedings  are  calcu- 
lated to  promote  or  to  impair  the  general  benefit  of 
the  community  of  nations." l 

If  the  right  of  interference  exists,  therefore,  as  a  per- 
fect right  at  International  Law,  it  can  be  accepted  and 
sanctioned  only  with  important  reservations,  and  can 
be  exercised  only  in  accordance  with,  and  subject  to, 
limitations  of  the  severest  character.  It. may  be  said 
to  exist  in  the  following  cases : 

(a.)  To  Assist  a  State  in  Suppressing  an  Insurrection 
or  Rebellion. — International  Law  is  essentially  conser- 
vative in  character.  It  recognizes  an  existing  state  of 
affairs,  and  opposes,  and  is  slow  to  recognize,  changes 

1  Creasy,  p.  289. 


Y6  OUTLINES  OF  INTERNATIONAL  LAW. 

effected  by  violent  and  revolutionary  methods.  Inter- 
ference in  favor  of  insurgents  is  never  sanctioned,  and 
when  undertaken  by  a  state  is  equivalent  to  a  declara- 
tion of  war  against  the  state  within  whose  territory 
the  rebellion  exists.  Not  only  is  armed  interference 
in  behalf  of  insurgents  not  justifiable,  but  the  furnishing 
of  any  assistance,  direct  or  indirect,  or  even  a  failure 
to  strictly  observe  neutral  obligations,  is  a  just  cause 
of  offence.  In  cases  of  interference  in  behalf  of  a 
central  government,  the  initiative  cannot  be  taken  by 
the  interfering  state.  Assistance  may  only  be  furnished 
on  the  request  of  the  belligerent  government,  and  then 
only  in  accordance  with  the  terms  of  the  invitation. 

(b.)  In  Accordance  with  Treaty  Stipulations. — It  will 
be  seen  that  certain  questions  of  strictly  internal  con- 
cern may  properly  be  made  the  subject  of  treaty  guar- 
antee. Such  are  the  maintenance  of  a  particular  gov- 
ernment or  constitution,  the  permanent  neutrality  of 
a  state,  or  its  existence  within  certain  territorial  lim- 
its. When  the  particular  state  of  affairs  which  has 
been  made  the  subject  of  guarantee  is  menaced  with 
change,  or  when  its  existence  is  threatened  in  any  way, 
by  force  applied  from  without,  or  originating  within 
the  guaranteed  territory,  it  becomes  the  duty  of  the 
guarantor  to  interfere,  and  to  carry  into  effect  the  stip- 
ulations of  the  treaty.  Interference  under  such  circum- 
stances is  both  just  and  legal.  It  is  limited  in  character 
and  amount  by  the  terms  of  the  treaty  which  author- 
izes it,  and  it  becomes  unlawful,  and  must  cease, when  the 
cause  of  danger  is  removed  and  the  internal  affairs  of  the 
state  have  been  restored  to  their  normal  condition. ' 

1  The  United  States,  in  its  treaty  of  1846  with  New  Granada, 


PERFECT  AND  IMPERFECT  RIGHTS.        77 

(c.)  In  Self-defence, — A  state  is  not  only  indepen- 
dent within  its  own  territory,  but  is  entitled  to  an  ab- 
solute immunity  from  external  interference,  and  from 
acts  of  hostility  or  annoyance  originating  beyond  its 
boundaries,  but  carried  into  effect  within  its  territory. 
An  insurrectionary  movement  within  its  jurisdiction 
may  be  largely  supported  and  maintained  by  persons 
residing  beyond  its  borders,  and  the  offending  state 
may  be  unable  or  unwilling  to  lend  its  aid  toward  their 
prevention.  In  such  an  event  a  state  is  authorized,  in 
the  exercise  of  the  right  of  self-defence,  to  invade  the 
territory  of  the  offending  state,  and  secure  redress 
for  the  injury  it  has  received.  To  justify  such  a 
course,  however,  the  cause  of  offence  must  be  clear, 
redress  must  have  been  demanded  and  plainly  de- 
nied, and  the  wrong  must  be  of  such  a  character  as 
to  render  necessary  a  resort  to  forcible  measures  of 
redress. 

(d.)  Interference  in  Behalf  of  Hie  Balance  of  Power. — 
The  term  Balance  of  Power  is  applied  to  a  rude  equi- 
librium of  political  forces  which  was  established  at  an 
early  date  among  the  different  states  of  Europe,  and 
the  preservation  of  which  is  sanctioned  by  their  gen- 
eral consent.  It  originated  in  an  instinctive  exercise 
of  the  right  of  self-defence,  and  its  continued  existence 
is  rather  a  matter  of  policy  and  expediency  than  of 
strict  right.  It  is  justified,  apart  from  the  considera- 

guaranteed  the  sovereignty  of  the  latter  state.  In  1885  it  was  obliged 
to  interfere  to  assist  in  the  repression  of  disturbance.  England  and 
the  United  States,  by  the  treaty  of  1850,  agiee  to  interfere  in  certain 
cases  in  Nicaragua.  The  United  States,  by  its  treaty  of  1867,  with 
Nicaragua,  is  also  obliged  to  interfere  when  the  case  exists  which  is 
contemplated  by  the  sixteenth  article  of  that  instrument. 


78  OUTLINES  OF  INTERNATIONAL  LAW. 

tions  of  self-preservation  that  are  involved,  by  the  fact 
that,  at  different  times,  it  has  powerfully  contributed 
to  preserve  the  general  peace  of  Europe  on  numerous 
occasions  when  that  peace  has  been  threatened  by  the 
selfish  schemes  of  ambitious  states. 

Its  right  to  exist  cannot  be  deduced  from  any  prin- 
ciple of  International  Law,  unless  the  state  system  of 
Europe  be  regarded  as  a  kind  of  alliance  or  confede- 
ration, having  for  its  purpose  the  maintenance  of  peace 
and  the  prevention  of  useless  and  unnecessary  wars.  It 
came  into  being,  largely  as  a  matter  of  necessity,  so  soon 
as  the  great  states  of  Europe  began  to  assume  something 
of  their  present  territorial  form,  and  was  developed 
out  of  repeated  instances  of  the  exercise  of  the  right 
of  self-preservation  by  those  states  as  they  found  them- 
selves obliged,  from  time  to  time,  to  impose  checks 
upon  the  power  of  ambitious  neighbors.  The  first 
wars  waged  in  its  behalf  were  those  carried  on  by 
Francis  I.  of  France,  in  the  first  half  of  the  sixteenth 
century,  to  resist  the  dangerous  and  increasing  power 
of  the  Emperor  Charles  V.,  whose  control  of  the  al- 
most unlimited  resources  of  Spain,  Germany,  and  the 
Netherlands  was  a  constant  menace,  not  only  to  the 
peace  of  Europe,  but  to  the  sovereignty  and  indepen- 
dence of  the  other  European  states.  From  that  epoch 
until  1815,  a  period  of  more  than  two  hundred  and 
fifty  years,  wars  were  of  such  frequent  occurrence,  and 
were  so  long  continued,  as  to  cause  a  state  of  per- 
manent peace  to  be  regarded  as  a  very  desirable,  but 
extremely  unlikely,  contingency.  Whether  the  great- 
er number  of  these  wars  were  due  to  attempts  to 
overthrow  or  to  defend  the  principle,  and  whether 
wars  would  have  been  more  or  less  frequent  had  the 


PERFECT  AND  IMPERFECT  RIGHTS.        fg 

principle  never  been  asserted,  need  not  be  discussed 
here. 

For  the  forty  years  succeeding  the  Congress  of  Vi- 
enna, in  1815,  the  peace  of  Europe  was  certainly  due 
to  a  constant  and  successful  observance  of  the  princi- 
ple— a  result  in  every  way  memorable  as  the  first  in- 
stance in  which  peace  had  been  maintained  on  the 
continent  of  Europe  for  so  long  a  time  since  the  be- 
ginning of  modern  history.  It  is  as  obvious,  however, 
that  most  of  the  great  wars  that  have  occurred  since 
the  Peace  of  Paris,  in  1856,  have  been  due  to  the  non- 
observance  or  abuse  of  the  principle. 

The  maintenance  of  peace  in  Europe  during  the 
greater  part  of  the  first  half  of  the  present  century 
was  not  obtained  without  corresponding  sacrifices. 
The  principle  of  the  balance  of  power  during  this  pe- 
riod was  not  simply  recognized  or  passively  acquiesced 
in  as  a  desirable  fact ;  on  the  contrary,  it  was  vigor- 
ously asserted,  and  to  a  great  extent  maintained,  by 
an  alliance  or  concert  of  action  on  the  part  of  the 
great  powers.  This  organization  was  conservative  in 
character,  and  seems  to  have  originated  in  an  agree- 
ment of  the  crowned  heads  at  Paris,  in  September,  1815, 
which  has  become  known  in  history  as  the  Holy  Alli- 
ance. The  concert  thus  established  was  maintained 
and  perpetuated  by  the  various  congresses  which  were 
held  during  the  decade  next  ensuing.  These  alliances 
were  intended  not  only  to  maintain  the  equilibrium  as 
established  at  the  Congress  of  Vienna,  but  to  discoun- 
tenance revolutionary  movements,  and,  by  a  resort  to 
measures  of  a  repressive  and  reactionary  character,  to 
prevent  the  general  adoption  of  even  desirable  consti- 
tutional reforms. 


80  OUTLINES  OF  INTERNATIONAL  LAW. 

At  present,  owing  to  the  great  increase  in  military 
strength  which  has  taken  place  in  some  of  the  more 
powerful  states  of  Europe,  and  to  a  corresponding 
diminution  in  the  importance  of  other  states  which 
were  formerly  powerful,  the  existence  of  the  equilib- 
rium is  in  constant  danger,  its  permanent  guarantee  is 
impossible,  and  the  balance  is  maintained  from  day  to 
day  with  great  and  ever-increasing  difficulty. 

De  Marten's  Statement  of  the  Principle  of  the  Bal- 
ance of  Power. — "  Every  state  has  a  natural  right  to 
augment  its  power,  not  only  by  the  improvement  of 
its  internal  constitution  and  the  development  of  its 
resources,  but  also  by  external  aggrandizement,  pro- 
vided that  the  means  employed  are  lawful;  that  is, 
that  they  do  not  violate  the  rights  of  another.  Nev- 
ertheless, it  may  so  happen  that  the  aggrandizement 
of  a  state  already  powerful,  and  the  preponderance 
resulting  from  it,  may,  sooner  or  later,  endanger  the 
safety  and  liberty  of  the  neighboring  states.  In  such 
case  there  arises  a  collision  of  rights  which  authorizes 
the  latter  to  oppose  by  alliances,  and  even  by  force  of 
arms,  so  dangerous  an  aggrandizement,  without  the 
least  regard  to  its  lawfulness.  This  right  is  still  more 
essential  to  states  which  form  a  general  society  than 
to  such  as  are  situated  at  a  great  distance  from  each 
other ;  and  this  is  the  reason  why  the  powers  of  Eu- 
rope make  it  an  essential  principle  of  their  political 
system  to  watch  over  the  balance  of  power  in  Europe. 
It  is  clear,  also,  that  it  is  not  always  the  extent  of  the 
acquisition  that  ought  to  determine  the  danger.  Ev- 
erything here  depends  on  circumstances.  The  annihi- 
lation of  a  state,  which  at  present  serves  as  a  counter- 
poise, may  become  as  dangerous  to  the  general  safety 


PERFECT  AND  IMPERFECT  RIGHTS.        gl 

of  the  neighboring  states  as  the  immediate  aggrandize- 
ment of  another  state." ! 

The  subjoined  rules  are  based  upon  the  exhaustive 
discussion  of  the  subject  by  Yattel : 

(1.)  "  The  mere  fact  that  a  state  has  acquired,  and  is 
acquiring,  power  greatly  preponderant  over  its  neigh- 
bors, does  not  of  itself  justify  other  states  in  making 
war  upon  it  for  the  purpose  of  reducing  its  power. 

(2.)  "  Under  such  circumstances  other  states  are  justi- 
fied in  watching  the  preponderant  state  with  cautious 
vigilance,  and  in  forming  leagues  with  each  other  for 
mutual  defence  from  it. 

(3.)  "  If  the  preponderant  state  commits  acts  of  injury 
against  its  neighbors,  or  any  of  them,  or,  by  the  arro- 
gance of  its  pretensions,  the  tone  of  its  public  de- 
spatches and  manifestoes,  or  by  any  other  course  of 
conduct,  beyond  the  mere  increase  of  its  strength,  it 
clearly  threatens  to  attack  or  oppress  its  neighbors, 
then  other  states  are  justified  in  combining  together 
and  in  making  war  upon  it,  so  as  to  prevent  it  from 
committing  disturbance  of  the  general  security  of  the 
commonwealth  of  civilized  nations,  or  of  the  security 
and  independence  of  any  of  them."  * 

These  are  to  be  accepted,  however,  with  certain  lim- 
itations : 

(1.)  The  internal  development  of  the  resources  of  a 
country  has  never  been  considered  a  pretext  for  such 
an  intervention,  nor  has  its  acquisition  of  colonies  or 
dependencies  at  a  distance  from  Europe.  It  seems  to 
be  held,  with  respect  to  the  latter,  that  distant  colo- 

1  Creasy,  "  First  Platform  of  International  Law,"  pp.  279,  280, 
citing  De  Martens,  §§  122-124. 

*  Creasy,  p.  285  ;  Vattel,  book  iii.,  chap,  iii.,  §§  42-50. 
6 


82  OUTLINES  OF  INTERNATIONAL  LAW. 

nies  and  dependencies  weaken,  and  always  render 
more  vulnerable,  the  metropolitan  state. 

(2.)  Although  the  increase  of  the  wealth  and  popula- 
tion of  a  country  is  the  most  effectual  means  by  which 
its  power  can  be  augmented,  such  an  augmentation  is 
too  gradual  to  excite  alarm. 

(3.)  The  injustice  and  mischief  of  admitting  that  na- 
tions have  a  right  to  use  force  for  the  express  purpose 
of  retarding  the  civilization  and  diminishing  the  pros- 
perity of  their  inoffensive  neighbors  are  too  revolting 
to  allow  such  a  right  to  be  inserted  even  in  the  lax 
code  of  International  Law. 

(4.)  Finally,  therefore,  interferences  to  preserve  the 
balance  of  power  have  been  confined  to  attempts  to 
prevent  a  sovereign  already  powerful  from  incorpo- 
rating conquered  provinces  into  his  territory,  or  in- 
creasing his  territory  by  marriage  or  inheritance,  or 
exercising  a  dictatorial  influence  over  the  councils  of 
an  independent  state.1 

(e.)  Intervention  in  Behalf  of  an  Oppressed  Popula- 
tion and  Against  the  Government  of  a  State. — From 
the  definition  of  a  state  it  is  clear  that  any  interfer- 
ence between  a  state  and  its  subjects  is  opposed  to  the 
fundamental  principle  of  International  Law.  It  should 
be  an  event  of  the  rarest  occurrence,  and  would  be 
justified  only  in  cases  of  the  greatest  emergency.  As 
a  matter  of  fact,  it  has  occurred  but  too  frequently, 
and  has  rarely  been  justified  by  existing  circumstances. 
A  rule  deduced  from  the  experience  of  nations  would, 
therefore,  express  the  conditions  under  which  the  law 

1  Essay  by  N.  W.  Senior,  on  "  Interference  to  Support  the  Bal- 
ance of  Power,"  in  No.  77  of  the  Edinburgh  Review,  cited  by  Creasjr, 
pp.  285,  286. 


PERFECT  AND  IMPERFECT  RIGHTS.        33 

of  nations  had  been  disregarded,  and  set  at  defiance,  or 
evaded,  rather  than  obeyed.  It  is  possible,  however, 
for  a  case  to  exist  in  which  a  part  of  the  people  of  a 
state  may  be  so  oppressed  or  persecuted  as  to  warrant 
other  states  in  interfering  upon  grounds  of  humanity. 
Such  a  case  would  be  likely  to  occur  when  a  part  of 
the  population  of  a  state  was  of  a  different  race  or  re- 
ligion from  the  great  majority  of  their  fellow-subjects, 
the  acts  of  oppression  originating  in  race  or  religious 
prejudice.  The  mere  fact  that  a  people  belonging  to 
a  particular  race,  or  professing  a  particular  religious 
belief,  were  placed  at  some  disadvantage  by  the  law 
or  policy  of  a  state,  would  constitute  no  valid  ground 
for  remonstrance,  still  less  for  interference.  To  jus- 
tify acts  of  positive  interference  one  or  more  of  the 
following  conditions  must  be  fulfilled : 

(1.)  A  remedy  for  the  wrongs  complained  of  must 
first  be  sought  in  the  way  of  protest  or  remonstrance. 

(2.)  The  oppression  or  persecution  must  be  so  serious 
in  character  and  so  great  in  amount  as  to  incur  the 
condemnation  of  the  civilized  world,  and  the  act  of  in- 
terference must  be  participated  in,  or  sanctioned  by, 
all  the  states  of  Christendom. 

(3.)  The  interference  must  be  limited  to  the  appli- 
cation of  a  remedy  to  the  wrong  complained  of,  and 
should  cease  so  soon  as  substantial  guarantees  are  fur- 
nished that  the  wrongful  acts  will  not  be  repeated.1 

2.  Duty  of  Mutual  Respect. — A  state,  in  its  capacity 
as  a  body  corporate,  has  not  only  a  right  of  reputa- 
tion, but  is  entitled  to  certain  external  and  visible 
tokens  of  respect  in  recognition  of  its  dignity  and  im- 

1  Hefftcr,  pp.  97-99. 


84:  OUTLINES  OF  INTERNATIONAL  LAW. 

portance  as  a  member  of  the  great  commonwealth  of 
nations.  This  consideration  is  also  extended  to  those 
persons  who  represent  a  state  in  an  official  capacity. 
Within  its  territorial  limits  the  honors  to  be  paid  to 
its  officers  are  determined  largely  by  custom  and  tra- 
dition ;  to  a  certain  extent,  also,  they  are  recognized 
and  sanctioned  in  its  municipal  laws.  Without  its  ter- 
ritorial jurisdiction  the  question  is  regulated  by  the 
usage  of  nations,  and  certain  honors  which  have  been 
received  and  paid  during  long  periods  of  time  are,  by 
such  long-continued  usage,  recognized  as  obligatory  at 
International  Law.  "  These  are  matters  of,  perhaps, 
trivial  importance  in  themselves,  but  their  due  observ- 
ance facilitates  the  amicable  intercourse  of  nations, 
and  their  neglect  frequently  leads  to  international  dif- 
ferences, discussions,  and  enmities,  which  have  some- 
times terminated  in  long  and  bloody  wars." 1 

The  practice  originated  in  the  honors  shown  to  sov- 
ereigns in  early  times,  when  they  represented,  to  a 
greater  degree  than  is  now  the  case,  the  majesty  and 
sovereignty  of  the  states  which  they  ruled  by  heredi- 
tary right,  and  whose  territory  they  regarded  as  their 
own.  This  early  view  culminated  toward  the  close  of 
the  seventeenth  century,  when  Louis  XIY.  was  at  the 
height  of  his  power,  and  before  the  principle  of  popu- 
lar sovereignty  had  begun  to  make  itself  felt  as  a  po- 
litical force  in  state  aifairs.  During  this  period  there 
was  no  surer  cause  for  war  than  a  failure  in  respect 
toward  a  great  sovereign  or  his  representative,  and 
not  a  few  of  the  many  wars  waged  were  caused  or 
prolonged  by  no  better  reasons  than  this.  From  that 

1  Halleck,  vol.  i.,  p.  107. 


PERFECT  AND  IMPERFECT  RIGHTS.        g5 

time  onward  the  practico  began  to  decline  in  impor- 
tance, and  merely  regal  honors  began  to  be  less  strongly 
insisted  upon.  The  power  and  dignity  of  the  state  itself, 
rather  than  that  of  its  ruler,  began  to  be  regarded  as  the 
real  object  of  honor  and  respect.  Within  the  last  cen- 
tury the  general  tendency  of  treaties  and  usage  has 
been  to  diminish  the  number  and  variety  of  these 
ceremonial  observances,  and  to  simplify  and  regulate 
those  which  have  been  retained,  or  whose  continued 
observance  is  deemed  necessary  or  desirable. 

At  the  present  time  all  states  are  regarded  as  being 
equal  in  right  and  dignity,  and  the  honors  now  ob- 
served are  regarded  as  due  : 

(1.)  To  the  state  itself,  in  its  sovereign  capacity. 
These  consist  in  certain  honors  paid  to  its  flag,  to  its 
sovereign  or  chief  executive,  as  the  representative  of  its 
sovereignty,  to  its  ships  of  war  in  foreign  ports  or  on 
the  high  seas,  and  to  organized  detachments  of  its 
land  forces  when  in  foreign  territory. 

(2.)  To  those  persons  who  represent  it  abroad  in  an 
official  capacity.  Under  this  head  fall  certain  honors 
and  marks  of  respect  shown  to  its  ambassadors  and 
consuls  in  their  different  grades,  and  to  persons  in  its 
civil  or  military  service  Avhose  duties  are  performed 
in  foreign  territory,  or  who  appear  in  such  territory 
in  an  official  character. 

The  observance  of  these  forms  is  now  held  to  be  ob- 
ligatory :' 

(1.)  In  the  forms  of  mutual  courtesy.  This  is  shown 
chiefly  in  the  recognition  of  an  existing  form  of  gov- 
ernment, including  its  sovereign,  or  executive,  and  oth- 
er administrative  officials,  whose  functions  are  pro- 
vided for  by  its  constitution  and  laws.  In  former 


gg  OUTLINES  OF  INTERNATIONAL  LAW. 

times  none  but  monarchies  were  recognized  as  having 
the  first  rank,  and  an  order  of  precedence  was  estab- 
lished among  them,  based  largely  upon  the  rank  and 
titles  of  their  respective  sovereigns.  Eepublics  were, 
to  some  extent,  disfavored,  and  in  matters  of  honor 
and  precedence  were  relegated  to  a  place  of  secondary 
or  minor  importance.  This  is  no  longer  the  case,  how- 
ever, and  all  sovereign  states  are  now  placed  upon  a 
footing  of  perfect  equality  in  all  matters  of  ceremonial. 

A  state,  as  an  incident  of  its  sovereignty,  may  reg- 
ulate the  honors  to  be  paid  within  its  jurisdiction  to 
its  own  flag  and  officials,  and  to  those  of  foreign  states. 
It  may  also  prescribe  the  conduct  of  its  representa- 
tives abroad,  subject  to  the  limitation  that  its  instruc- 
tions cannot  be  carried  into  effect  if  they  are  opposed 
to,  or  inconsistent  with,  the  usages  or  policy  of  the 
state  within  whose  jurisdiction  it  is  attempted  to  ex- 
ercise them.  In  accordance  with  this  principle  every 
state  prescribes,  in  its  laws  or  regulations,  the  forms 
of  respect  to  be  shown  to  its  flag,  or  to  the  person  in 
whom  its  sovereignty  is  vested,  and  no  greater  hon- 
ors may  be  shown  to  a  foreign  sovereign  than  are  thus 
prescribed  to  be  paid  to  its  own  sovereign  or  chief  ex- 
ecutive. 

(2.)  In  naval  and  military  ceremonials  observed  on 
the  high  seas,  or  in  the  territorial  waters  of  a  state, 
between  ships  or  fleets,  between  ships  in  port,  and  be- 
tween ships  and  forts  or  fortified  places. 

(3.)  In  similar  observances,  on  land,  between  armies, 
forts,  military  and  naval  officers,  and  in  certain  mili- 
tary honors  shown  sovereigns,  or  to  the  higher  grades 
of  civil  officers  in  the  administrative  or  diplomatic  ser- 
vice of  a  state. 


PERFECT  AND  IMPERFECT  RIGHTS.        §7 

(4.)  In  the  formality  and  ceremonial  observed  in 
diplomatic  intercourse  and  interstate  correspond- 
ence. 

Maritime  Ceremonial.  —  The  subject  of  maritime 
ceremonial  is  regulated  by  usage,  and,  to  a  percepti- 
bly increasing  extent,  at  the  present  time,  by  treaty 
and  agreement  of  the  maritime  powers.  Ships  of 
war  visiting  foreign  ports  have  a  peculiarly  represent- 
ative character.  They  are  required  to  pay  certain 
honors  to  the  territorial  sovereign  and  his  representa- 
tives, and  may  expect  in  return  that  special  respect 
shall  be  shown  to  the  flag  under  which  they  sail,  and 
to  the  state  whose  commission  they  bear. 

The  forms  of  maritime  ceremonial  consist  in  the 
firing  of  salutes,  manning  the  yards,  dressing  the  ship, 
and  in  hoisting  the  flag  of  the  state  or  person  saluted. 
It  is  also  customary,  in  firing  salutes  in  port,  to  furl 
the  sails ;  and  a  similar  practice  prevails  of  hoisting  a 
particular  sail  in  saluting  or  returning  the  salutes  of 
war  ships  or  fleets  at  sea.  The  national  flag  of  a  pub- 
lic armed  vessel,  however,  should  never  be  lowered  as 
a  token  of  respect  to  any  foreign  state  or  individual. 
As  an  expression  of  grief  it  may  be  lowered  to  half- 
mast  ;  it  may  be  dipped  in  returning  a  similar  salute 
rendered  by  a  foreign  vessel,  but  in  every  other  case 
it  should  be  carried  in  its  proper  situation  during  those 
hours  of  the  day  in  which  its  display  is  required  by 
regulations. 

Ceremonial  on  the  High  Seas. — "When  two  ships 
of  war  meet  upon  the  high  seas,  courtesy  requires  that 
the  commanding  officer  lowest  in  rank  shall  salute  first." 
"  The  same  rule  holds  with  respect  to  the  flag-ships  of 
squadrons ;  but  a  single  ship,  no  matter  what  its  rank, 


88  OUTLINES  OF  INTERNATIONAL  LAW. 

meeting  a  squadron,  salutes  first."1  "These  are  re- 
turned gun  for  gun.  Vessels  carrying  sovereigns,  mem- 
bers of  royal  families,  rulers  of  states,  and  ambassadors 
are  to  be  saluted  first."  * 

Merchant  vessels  of  the  same  or  different  nations, 
meeting  or  passing  upon  the  high  seas,  usually  hoist 
their  national  colors,  but  otherwise  do  not,  as  a  gen- 
eral rule,  salute  each  other.  It  is  customary,  however, 
for  them  to  ascertain,  by  hailing  or  the  use  of  signals, 
the  name,  origin,  destination,  and  cargo  of  passing  ves- 
sels. This  information  is  noted  in  the  ship's  log,  and, 
as  a  matter  of  commercial  news,  is  sometimes  reported 
to  the  port  of  origin  of  the  vessel  hailed. 

Ceremonial  in  Foreign  Ports. — The  first  duty  of 
a  ship  of  war  upon  its  arrival  in  a  foreign  port  is  to 
salute  the  flag  of  the  state  within  whose  jurisdiction 
it  has  come.  If  public  vessels  of  other  nations  are  in 
port,  their  flags  are  saluted  in  a  similar  manner.  "  This 
salute  is  a  compliment  to  the  flag,  and  consequently  is 
considered  international  rather  than  personal.  The 
same  rule  holds  with  respect  to  the  interchange  of 
compliments  and  visits  with  the  authorities  on  shore ; 
the  compliment  or  visit  being  first  made  from  the  ves- 
sel, without  regard  to  relative  rank,  even  if  it  were 
possible  to  fix  any  relative  rank  for  officers  so  different 
in  their  nature  and  character.  The  rule  making  such 
compliments  international  avoids  any  necessity  of  at- 
tempting such  assimilation." 3 

1  Halleck,  vol.  i.,  p.  114.  2  Ibid. 

3  This  rule  is  a  very  general  statement  of  the  international  obliga- 
tion, and  applies  to  ceremonial  visits  in  which,  from  the  nature  of 
the  case,  it  is  impossible  to  establish  a  standard  of  relative  rank  by 
which  to  determine  the  official  precedence  of  the  persons  by  whom 
the  visits  are  received  and  returned.  Where  such  a  scale  of  relative 


PERFECT  AND  IMPERFECT  RIGHTS.        gg 

"  An  apparent  exception  is  made  to  this  rule,  in  the 
case  of  vessels  carrying  persons  of  sovereign  rank, 
members  of  the  royal  family,  or  ambassadors  repre- 
senting sovereigns  or  sovereign  states.  In  such  cases 
the  forts,  batteries,  and  garrisons  always  salute  first. 
But  such  salutes  are  intended  for  the  persons  carried, 
and  not  for  the  vessel  carrying  them,  and,  consequent- 
ly, the  vessel  does  not  return  the  salute.  It  is  custom- 
ary, however,  for  such  vessel,  if  foreign,  to  afterward 
salute  the  fort  or  garrison  in  the  usual  manner ;  which 
salute  is,  of  course,  to  be  returned  gun  for  gun.  Am- 
bassadors visiting  foreign  ports,  not  the  capital  or  seat 
of  the  court  of  a  sovereign  or  a  sovereign  state,  first 
receive  the  visits  and  compliments  of  the  local  author- 
ities. This  rule  of  courtesy  results  from  their  sup- 
posed representative  character.  Where  vessels  of  war, 
in  foreign  ports,  land  or  receive  on  board  their  own 
sovereigns,  or  officers  of  their  own  government,  the 
salutes  to  be  given  and  ceremonies  to  be  observed 
are  to  be  determined  by  their  own  laws  and  regu- 
lations. The  same  remark  applies  to  the  compli- 
ments to  be  paid  on  such  occasions  by  other  ships  in 
port,  and  by  the  military  establishments  on  shore, 
each  being  governed  by  their  own  laws  and  regula- 
tions." ' 

Maritime  Honors  to  be  Paid  to  Ambassadors  and 
Consuls— -The  duty  of  interstate  respect  having  been 
performed,  such  salutes  and  formal  visits  as  are  pro- 
vided for  by  the  navy  regulations  of  its  own  state  are 

rank  has  been  agreed  upon  or  is  generally  recognized,  as  is  the  case 
•with  the  military  or  naval  officers  of  different  states,  the  present 
tendency  is  to  require  the  first  visit  to  be  paid  by  the  junior  in  grade. 
1  Halleck,  vol.  i.,  p.  115. 


90  OUTLINES  OF  INTERNATIONAL    LAW. 

paid  to  its  diplomatic  and  consular  representatives  who 
are  resident  or  present  in  the  visited  port. 

International  Agreement  as  to  Salutes. — A  proposi- 
tion originating  with  the  British  government  has  re- 
ceived such  general  approval  and  sanction  from  other 
maritime  powers  as  to  entitle  it  to  acceptance  as  an 
international  usage.  In  accordance  with  its  terms  the 
following  classification  is  made  of  salutes : 

"  I.  Salutes  not  to  be  returned : 

"  (1.)  To  royal  personages,  the  chief  of  a  state,  and  to 
members  of  royal  families,  whether  on  arrival  at  or  de- 
parture from  any  port,  or  upon  visiting  a  ship  of  war. 

"  (2.)  To  diplomatic,  naval,  military,  or  consular  au- 
thorities, or  to  a  governor,  when  visiting  a  ship  of  war. 

"  (3.)  Salutes  upon  occasions  of  national  festivals. 

"II.  Salutes  which  are  not  considered  as  personal, 
and  should  therefore  be  returned  gun  for  gun. 

"  (1.)  To  the  national  flag  on  arriving  at  a  port. 

"(2.)  To  flag-officers  when  met  with  at  sea  or  in 
port."1 

Observance  of  National  Anniversaries.  —  "Vessels 
of  war  in  foreign  ports  celebrate  their  own  fetes  ac- 
cording to  the  regulation  of  their  own  government. 
Courtesy  also  requires  them  to  take  part  in  the  na- 
tional fetes  of  the  place,  by  joining  in  public  demon- 
strations of  joy  or  grief.  The  same  mark  of  respect 
is  shown  to  vessels  of  a  third  power  which  celebrates 
fetes  in  foreign  ports.  But  if  such  celebrations  are  of 
a  character  to  offend  or  wound  the  feelings  of  their 
own  countrymen,  or  the  nation  in  whose  waters  they 
are  anchored — as  public  rejoicings  for  a  victory  gained 

1  Adopted  by  the  United  States  August  18, 1875.     "  Foreign  Rela- 
tions of  the  United  States,"  pt.  h.,  pp.  656,  657. 


PERFECT  AND  IMPERFECT  RIGHTS.        9} 

— ships  of  war  will  remain  as  silent  spectators  or  leave 
the  ports,  according  to  the  circumstances  of  the  case. 
In  public  ceremonies  upon  land  the  commandants  of 
vessels  or  fleets  usually  land  with  the  officers  of  their 
staff,  and  receive  a  place  of  honor  according  to  the 
hierarchy  of  rank,  precedence  being  determined  by 
grade,  and,  if  equal,  by  date  of  arrival.  In  case  of  dis- 
putes as  to  rank,  it  is  proper  for  the  contestants  to  with- 
draw, and  become  mere  spectators  of  the  ceremonies." ' 

Visits  of  Ceremony. — When  a  public  armed  vessel 
arrives  at  a  foreign  port  it  is  customary  for  the  proper 
naval  authority  of  the  port  to  send  an  officer  on  board 
the  arriving  ship  to  tender  the  courtesies  of  the  port 
to  the  commanding  officer ;  the  same  usage  is  obliga- 
tory upon  the  commanders  of  fleets  or  vessels  of  other 
nations  who  happen  to  be  in  port  at  the  time.  These 
offers  are  at  once  acknowledged  by  the  commanding 
officer  of  the  arriving  fleet  or  vessel.  Within  twenty- 
four  hours  after  the  arrival  of  the  foreign  vessel  a  for- 
mal visit  is  paid  to  the  same  persons  by  the  commander 
of  the  arriving  vessel,  if  of  equal  or  junior  grade,  and 
these  visits  are  returned  within  the  same  limits  of  time. 
In  accordance  with  the  present  usage,  however,  if  the 
commanding  officer  of  the  arriving  vessel  be  the  senior 
in  grade  the  first  visit  will  be  paid  by  the  inferior.* 

Ceremonial  on  Land. — A  similar  ceremonial  is  ob- 
served on  land,  between  armies,  forts,  and  military  or 
naval  officers  representing  different  states,  who  come 
into  official  or  personal  contact  in  the  performance  of 

1  Halleck,  vol.  i ,  pp.  116, 117. 

s  "British  Navy  Regulations,"  art  57,  p.  15;  "French  Navy  Reg- 
ulations," art.  851,  p.  243;  Circular  No.  3,  "United  States  Navy  De- 
partment," April  28,  1877. 


92  OUTLINES  OF  INTERNATIONAL  LAW. 

their  official  duties.  Suitable  military  honors  are  paid 
to  foreign  sovereigns  and  ambassadors,  and  to  the  high- 
er grades  of  officials  of  the  civil  or  military  service  of 
a  foreign  state. 

The  Formalities  of  Diplomatic  Intercourse.  —  The 
privileges  and  immunities  of  public  ministers,  and  the 
usages  which  are  observed  in  diplomatic  intercourse, 
will  be  discussed  in  the  chapter  on  ambassadors  and 
consuls. 

3.  Imperfect  Rights. — There  is  another  class  of  state 
rights  or  duties  to  which  attention  will  now  be  drawn. 
It  has  been  seen  that  a  state,  in  its  capacity  as  a  body 
politic,  possesses  many  of  the  attributes  of  a  moral 
person.  It  may  express  sympathy,  it  may  perform 
acts  of  charity,  humanity,  or  courtesy,  and  may  be  held 
morally  responsible  for  their  non-performance.  The 
performance  of  such  acts  is  incumbent  upon  a  state  for 
the  same  reason  and  to  the  same  extent  that  it  is  in- 
cumbent upon  an  individual.  Its  failure  to  perform 
them,  like  a  similar  failure  on  the  part  of  an  individ- 
ual, violates  no  perfect  right,  and  is  therefore  not  pun- 
ishable, or  a  proper  subject  for  redress.  As  a  nation 
is  actuated  to  the  performance  of  these  duties  by  con- 
siderations of  courtesy  or  good-will ',  and  as  a  failure  to 
observe  them  does  not  constitute  a  sufficient  cause  for 
war,  they  are  called  imperfect  rights;  or,  since  they 
are  founded  upon  considerations  of  moral  obligation, 
they  are  sometimes  called  moral  claims.1 

The  following  are  some  of  the  more  important  of 
these  imperfect  rights  or  duties : 

1  Dr.  Woolsey  was,  I  think,  the  first  to  use  this  term.  It  explains 
the  obligation  more  fully  than  does  the  other,  which  is  the  more  gen- 
erally used. 


PERFECT  AND  IMPERFECT  RIGHTS.        93 

(a.)  The  Duty  of  Humanity. — A  state,  in  the  per- 
formance of  this  duty,  has  chiefly  to  do  with  individ- 
uals who  are  obliged  to  seek  shelter  in  its  territory 
from  acts  of  hostility  or  from  the  perils  of  the  sea. 
The  cases  of  the  crews  of  wrecked  vessels,  or  those  of 
ships  of  war  or  merchant  vessels  seeking  refuge  from  a 
superior  force  of  the  enemy,  and  of  bodies  of  defence- 
less troops  fleeing  across  a  neutral  frontier  to  escape 
capture,  are  illustrations  of  the  performance  of  this 
duty. 

The  duty  of  humanity,  however,  is  not  of  exclusive 
application  to  individuals.  "If  a  nation  is  suffering 
under  a  famine,  all  others  having  a  quantity  of  provis- 
ions are  bound  to  relieve  its  distress,  yet  without  there- 
by exposing  themselves  to  want." l  "  The  like  assist- 
ance is  due  whatever  be  the  calamity  by  which  a  nation 
is  afflicted.  Whole  sections  of  countries  are  sometimes, 
devastated  by  floods,  and  cities  and  towns  destroyed 
by  fires  and  earthquakes,  leaving  vast  numbers  of  peo- 
ple destitute  of  the  means  of  shelter  and  subsistence. 
It  is,  first,  the  duty  of  their  own  government  to  pro- 
vide for  these  wants ;  but  not  infrequently  the  calam- 
ity is  so  great  that  the  government  is  unable  to  give 
its  aid  to  the  extent  and  within  the  time  required  to 
render  its  aid  efficacious.  In  such  cases  the  laws  of 
humanity  would  impose  a  duty  on  others.  In  many 
instances  of  this  kind,  however,  the  active  charity  of 
individuals  and  communities  renders  any  action  on  the 
part  of  the  governments  of  other  states  unnecessary. 
But  a  government  may  always  stimulate  and  assist 
such  charity,  and  by  thus  reflecting  and  giving  effect 

1  Halleck,  vol.  i.,  p.  406. 


94:  OUTLINES  OF  INTERNATIONAL  LAW. 

to  the  general  feelings  of  its  people  manifest  its  sym- 
pathy and  generosity.  Of  such  a  character  was  the 
assistance  rendered  by  the  government  of  the  United 
States  in  transporting  to  Ireland  the  contributions  of 
provisions  spontaneously  oifered  by  the  American  peo- 
ple."1 

(£>.)  The  Duty  of  Comity. — "  There  is  a  set  of  cour- 
teous and  convenient  observances,  usually  followed  in 
the  conduct  of  states  toward  each  other,  too  definite, 
and  often  too  minute  and  conventional,  to  make  it 
proper  to  call  them  moral  principles.  The  violation 
or  neglect  of  these  is  not  considered  sufficient  in  itself 
to  justify  war,  though  one  state  is,  by  such  violation 
or  neglect,  often  placed  in  an  attitude  of  avowed  ill- 
will  and  suspicion  toward  another  state.  These  ob- 
servations of  courtesy  and  convenience  are  said  to  de- 
pend on  what  jurists  and  statesmen  style  the  comity 
of  nations." a  The  practice  of  extradition,  the  recogni- 
tion of  the  principles  of  Private  International  Law,  the 
privileges  of  exterritoriality  extended  to  foreign  sov- 
ereigns and  ambassadors,  to  armies  in  transit,  and  to 
public  armed  vessels,  are  all  based  upon  the  comity  of 
nations. 

(c.)  The  Duty  of  Intercourse. — In  the  discussion  of 
this  duty  it  is  necessary  to  regard  it  from  two  points 
of  view,  and  to  consider,  1st.  The  duty  of  a  state  to 
enter  into  relations  of  intercourse  with  other  states, 
to  send  and  receive  ambassadors,  to  permit  consuls  to 
reside  and  to  perform  their  duties  in  its  commercial 
cities,  to  negotiate  treaties,  and  to  permit  aliens  to 
travel  or  reside  in  its  territory.  2d.  The  duty  of  com- 

1  Halleck,  vol.  i.,  p.  407.  '  Creasy,  p.  36. 


PERFECT  AND  IMPERFECT  RIGHTS.        95 

mercial  intercourse,  which  consists  in  permitting  for- 
eigners to  engage  in  commerce  with  its  subjects,  and 
to  exchange  its  products  for  those  of  other  nations. 

In  the  former  case  a  nation,  by  establishing  a  rule 
of  strict  non-intercourse,  shuts  itself  out  from  being  a 
party  to  International  Law.  It  declines  to  be  bound 
by  its  sanctions,  and  it  cannot  of  right  expect  other 
states  to  observe  them  in  such  casual  and  irregular  in- 
tercourse as  they  may  have  with  it.  Aliens  who  enter 
its  territory  do  so  at  their  peril ;  and,  as  its  own  citi- 
zens in  foreign  parts  cannot  look  to  their  own  govern- 
ment for  protection,  many  of  their  wrongs  must  go 
unredressed.  It  is  not  necessary  to  discuss  the  subject 
further,  for  the  reason  that  no  state  now  assumes,  or 
has  ever  assumed,  such  an  attitude  of  complete  isola- 
tion. It  is  only  necessary  to  observe,  in  this  connec- 
tion, that,  in  proportion  as  a  nation  withdraws  itself 
from  intercourse  with  other  states,  or  hampers  its  in- 
ternational relations  with  needless  and  burdensome 
restrictions,  in  the  same  proportion  it  withdraws  itself 
from  the  benefits  and  privileges  of  International  Law. . 
If  it  ceases  to  sanction,  or  formally  withdraws,  privi- 
leges which  have  been  granted  to  other  states,  or  to 
aliens  resident  within  its  territory,  or  which  they  have 
enjoyed  with  its  tacit  consent,  it  is  guilty  of  a  viola- 
tion of  comity  which  will  gain  for  it  the  ill-will  of  na- 
tions, and,  if  such  a  policy  be  persisted  in,  may  in  the 
end  result  in  measures  of  retaliation. 

In  respect  to  the  duty  of  commercial  intercourse,  it 
has  been  contended  by  some  writers  that  the  right  to 
such  intercourse  is  a  perfect  right,  and  that  a  refusal 
to  enter  into  commercial  relations  is  a  just  cause  for 
war.  Others  claim  that  such  intercourse  is  a  perfect 


96  OUTLINES  OF  INTERNATIONAL  LAW. 

right  only  when  an  article  of  commerce  is  produced  by 
one  state  which  is  absolutely  necessary  to  the  existence 
of  another.  Neither  of  these  views  is  fairly  deducible 
from  the  fundamental  principles  of  International  Law. 
In  the  first  place,  while  many  articles  of  trade  are  high- 
ly desirable,  none  have  thus  far  been  shown  to  be  so 
absolutely  necessary  and  indispensable  as  to  justify  a 
resort  to  forcible  methods  to  obtain  them.  Such  a 
view  is  not  to  be  inferred  from  the  theory  of  state 
sovereignty  and  independence,  and  a  refusal  to  enter 
into  such  relations  would  certainly  not  justify  acts  of 
hostile  interference.  "  Vattel  lays  down  the  general 
rule  that  every  nation,  in  virtue  of  its  natural  liberty, 
has  a  right  to  trade  with  those  which  shall  be  willing 
to  correspond  with  such  intentions,  and  to  molest  it  in 
the  exercise  of  its  right  is  an  injury." l  "  The  obliga- 
tion of  trading  with  a  foreign  state  is  imperfect  in  it- 
self, and  gives  them  only  an  imperfect  right,  so  that, 
in  cases  where  the  commerce  would  be  detrimental,  it 
is  entirely  void." a  "  China  and  Japan  for  a  long  time 
declined  all  commercial  intercourse  with  other  nations, 
and  even  now  permit  only  a  very  restricted  trade,  in 
particular  articles  and  at  particular  places.  The  ques- 
tion was  at  one  time  discussed  whether  these  people 
could  not  be  compelled  to  open  their  ports  to  foreign- 
ers, and  engage  in  trade  and  general  intercourse 
with  the  rest  of  the  world.  But,  as  a  question  of  in- 
ternational jurisprudence,  it  scarcely  merits  considera- 
tion. No  doubt  on  this  point  could  arise  in  the  mind 
of  any  person  except  those  who  contend  that  the  rules 


1  Halleck,  vol.  i.,  p.  402. 

a  Ibid.,  p.  404  ;  Vattel,  "Droit  de  Gens,"  liv.  ii.,  chap,  ii.,  §  24-48 


PERFECT  AND  IMPERFECT  RIGHTS.        97 

of  International  Law  adopted  by  Christian  nations  are 
wholly  inapplicable  to  the  countries  of  Asia.  But  this 
opinion,  although  at  one  time  supported  by  writers  of 
unquestionable  ability,  is  now  almost  universally  re- 
jected by  publicists." ' 

References.  —  For  a  discussion  of  the  fundamental,  or  perfect, 
rights  of  states,  the  student  is  referred  to  the  following  authori- 
ties :  Hall,  "  International  Law,"  pp.  37-50 ;  Creasy,  "  First  Plat- 
form of  International  Law,"  chap.  viii. ;  G.  F.  De  Martens,  "  Precis 
du  Droit  des  Gens,"  liv.  iii.,  chaps.  1-3;  liv.  iv.,  chaps.  1-4;  Hal- 
leek,  vol.  i.,  chaps,  iv.-vii.,  and  chap.  xiii. ;  Vattel,  chap,  iii.,  §§  35- 
48 ;  "Woolsey,  §§  36-52.  For  the  rules  and  forms  of  international 
ceremonial,  diplomatic,  naval,  and  military,  see  Halleck,  chap,  v., 
§§  15-29;  Ortolan,  ''Diplomatic  de  la  Mer;"  G.  F.  De  Martens, 
liv.  v.,  §§  175-184;  Heifter,  liv.  iii.,  chaps.  1  and  2;  Vattel,  chap, 
iii.,  and  the  naval  and  military  regulations  of  various  states.  The 
subject  of"  Imperfect  Rights  "  is  treated  by  Creasy,  pp.  15-23 ;  Phil- 
limore,  vol.  i.,  pp.  181-183;  Halleck,  vol.  i.,  chap,  xiii.,  §§  1-25,- 
G.  F.  De  Martens,  liv.  v.,  §§  164-184;  Vattel,  bk.  ii.,  chaps,  i.  and 
ii.  Under  the  head  of  duties,  or  moral  claims,  this  subject  is  quite 
fully  treated  by  Dr.  Woolsey.  "  International  Law,"  §§  22-25. 

1  Halleck,  vol.  i.,  p.  405. 


CHAPTER  IY. 

NATIONAL    CHARACTER. 

1.  National   Character  of  an  Individual,  how  De- 
termined?—  The  national  character  of  an  individual 
is  determined  by  his  citizenship. 

2.  Definition  of  the  Term  Citizen. — A  citizen  or  sub- 
ject of  a  state  is  an  individual  member  of  the  body 
politic,  owing  it  allegiance  and  entitled  to  its  protec- 
tion in  person  and  property.     The  terms  citizen  and 
subject,  as  used  in  International  Law,  have  precisely  the 
same  meaning.    They  apply  to  all  the  inhabitants  of 
a  state,  of  both  sexes,  and  of  all  ages  and  conditions. 
The  term  citizen  is  usually  applied  in  states  having 
republican  forms  of  government ;  the  term  subject  in 
those  having  monarchical  institutions.     Jt  is  not  an 
essential  condition  of  citizenship  that  an  individual 
subject  or  citizen  should  have  any  share  in  the  govern- 
ment of  a  state.     His  position  at  International  Law  is 
the  same  in  either  case.   The  right  of  suffrage  is  strict- 
ly municipal  in  character,  and  is  a  privilege  granted,  or 
withheld,  by  a  state  in  accordance  with  its  constitution 
and  laws.    In  some  states  it  does  not  exist,  in  others 
it  is  greatly  restricted,  in  none  does  it  extend  to  all 
who  have  the  rights  and  privileges  of  citizenship.1 


1  In  the  United  States  it  is  possible,  however,  for  an  alien  to  ac- 
quire the  right  to  vote,  in  many  states,  without  becoming  a  citizen 
of  the  United  States.  But  such  persons  would  not  be  citizens  of 


NATIONAL  CHARACTER.  99 

3.  Classification  of  Citizens.  —  Citizens  or  subjects 
may  be  either  native  lorn  or  nattiralized.  The  first  is 
a  natural,  the  second  an  artificial,  state  of  allegiance. 
A  native-born  citizen  is  one  born  within  the  territory 
of  a  state,  and  subject  to  its  jurisdiction.  This  condi- 
tion of  allegiance  is  called  the  citizenship  of  birth,  or 
nativity.  It  adheres  through  life,  unless  terminated 
by  expatriation,  or  by  process  of  law.  TVhen  the  na- 
tionality of  an  individual  is  drawn  in  question,  his  citi- 
zenship by  birth  is  always  presumed,  and  it  is  incum- 
bent upon  him  to  prove  any  subsequent  change  of 
allegiance.  If,  however,  he  has  acquired  another  na- 
tional character,  by  undergoing  the  process  of  natural- 
ization elsewhere,  with  the  consent  of  his  native  state 
as  expressed  in  its  laws  and  treaties,  he  is  as  fully  a 
citizen  of  the  latter  state  as  if  he  were  there  native 
born,  and  is  as  fully  entitled  to  its  protection.1 

the  United  States,  and  would  not  be  entitled  to  its  protection  abroad. 
Tbey  are  not  citizens  according  to  the  rule  of  International  Law. 

1  The  term  native-born  citizen  is  extremely  difficult  of  definition, 
for  the  reason  that  it  is  impossible  to  deduce  a  uniform  rule  upon 
the  subject  which  is  observed  by  all  nations.  Most  modern  states, 
however,  follow  one  of  two  rules,  and  determine  the  nationality  of 
a  child,  1.  By  the  nationality  of  its  parents;  2.  By  the  place  of  its 
birth.  Until  the  close  of  the  last  century  the  former  rule  prevailed 
among  most  civilized  states.  Since  the  beginning  of  the  present 
century,  and  by  reason  of  the  greater  and  more  frequent  movement 
of  individuals  from  one  state  to  another,  and  especially  to  newly- 
settled  countries,  the  second  rule  has  acquired  great  prevalence. 
"England  and  the  United  States  claim  all  persons  born  within  their 
territory  as  native  born  citizens,  whatever  may  have  been  the  na- 
tionality of  their  parents.  Denmark,  Portugal,  Holland,  and  Italy 
follow  substantially  the  same  rule,  as,  with  some  exceptions,  do 
France,  Belgium,  Baden,  Greece,  and  Spain.  The  other  states  of 
Europe  regard  a  child  as  having  the  citizenship  of  its  parents.  The 
definition  stated  in  the  text  applies  more  generally  than  any  other. 


100  OUTLINES  OF  INTERNATIONAL  LAW. 

A  naturalized  citizen  is  one  who  has  relinquished 
his  citizenship  of  nativity,  and  has  acquired  a  new  al- 
legiance in  a  state  other  than  that  of  his  birth. 

The  citizenship  of  a  dependent  person  is  that  of  his 
principal  or  superior.  Hence  the  citizenship  of  a  child 
is  that  of  his  father,  if  legitimate,  of  his  mother,  if  ille- 
gitimate; of  a  ward  that  of  his  guardian;  of  a  wife 
that  of  her  husband.  Hence  children  born  on  the 
high  seas,  or  while  passing  through  foreign  countries, 
have  the  legal  nationality  of  their  parents.  Citizen- 
ship in  a  state  may  be  renounced  by  an  individual  with 
a  view  to  undergoing  the  process  of  naturalization 
elsewhere.  It  may  also  be  terminated  by  process  of 
law,  as  by  sentence  of  death  or  exile,  which  in  most 
states  has  the  effect  of  destroying  civil  rights.  It  may 
be  forfeited  by  emigration,  or  by  long-continued  ab- 
sence. Once  forfeited  it  may  be  resumed  with  the 
consent  of  the  native  state,  by  a  compliance  with  the 
formalities  of  its  municipal  law. 

4.  Naturalization  is  that  process  of  municipal  law 
by  which  an  individual  effects  a  change  in  his  national 
character. 

Most  states  that  recognize  the  sanctions  of  Inter- 
national .Law  claim  and  exercise  the  right  of  admit- 
ting foreigners  to  their  allegiance,  and  of  bestowing 
upon  them  the  privileges  and  responsibilities  of  citizen- 
ship. Nearly  all  of  them  recognize  the  right,  on  the 
part  of  their  subjects,  of  renouncing  their  native  alle- 
giance and  of  acquiring  a  new  citizenship  in  a  foreign 
state.  The  process  of  naturalization  consists  of  two 
essential  parts :  1st.  A  renunciation  of  the  old  allegi- 
ance. In  some  states  this  is  expressly  required,  in 
others  it  is  presumed  by  the  act  of  naturalization. 


NATIONAL  CHARACTER.  101 

From  the  nature  of  allegiance  it  is  obvious  that  an 
individual  can  maintain  the  relation  to  but  one  state 
at  a  time.  2d.  A  formal  assumption  of  the  duties  and 
obligations  of  citizenship  in  the  new  state.  This  is 
usually  effected  by  an  oath  of  allegiance.  A  period 
of  residence  is  also  required  as  a  condition  precedent 
to  naturalization. 

Conditions  of  Naturalization. — The  following  con- 
ditions of  naturalization  are  now  generally  sanctioned 
by  the  usage  of  nations. 

(a.)  The  result  of  the  process  of  naturalization  is  to 
effect  an  entire  change  in  the  national  character  of  an 
individual.  He  is  as  fully  invested  with  the  rights  of 
citizenship  in  the  new  state  as  if  he  were  there  a  native- 
born  citizen,  and  is  entitled  to  the  same  extra-territorial 
protection.  Such  protection  can  be  extended  to  him 
in  the  state  of  his  nativity  only  as  the  result  of  treaty 
stipulation. 

(5.)  A  state,  by  exercising  its  right  of  naturalization 
in  favor  of  an  individual,  cannot  absolve  him  from  any 
legal  obligations  due  to  his  former  sovereignty  at  the 
time  of  his  emigration ;  and  he  is  liable  to  be  held  to 
the  performance  of  such  obligations  should  he  return 
at  any  time  to  the  jurisdiction  of  his  native  state. 

(<?.)  An  individual,  after  having  been  naturalized  in  a 
state,  may  renounce  such  citizenship,  and  may  renew 
his  native  allegiance,  or  may  form  a  new  tie  of  citizen- 
ship elsewhere.  Should  he  return  to  his  native  state 
and  settle  there,  with  the  intention  of  remaining,  he  is 
usually  regarded  as  having  forfeited  his  acquired  alle- 
giance, and  his  citizenship  of  nativity  is  resumed. 

(d.)  The  municipal  laws  of  every  state  enumerate 
and  define  the  rights  and  privileges  which  may  be  ac- 


102  OUTLINES  OF  INTERNATIONAL  LAW. 

quired  by  its  naturalized  citizens.  In  no  case  do  such 
persons  acquire  all  the  privileges  of  native-born  citi- 
zens. The  most  usual  restrictions  apply  to  the  holding 
of  political  and  military  office,  the  highest  grades  of 
which,  in  every  state,  can  only  be  filled  by  native-born 
citizens.  In  the  United  States^  whose  policy  of  natural- 
ization is  extremely  liberal,  the  offices  of  President  and 
Vice-President  can  only  be  held  by  native-born  citizens. 

(<«.)  A  naturalized  citizen  who  returns  to  his  native 
country  and  takes  up  his  residence  there  with  the  in- 
tention of  remaining,  is  presumed  to  have  renounced 
his  acquired  citizenship.  His  adopted  country,  in  such 
an  event,  is  justified  in  declining  to  extend  its  protec- 
tion to  a  person  who  has  ceased  to  perform  the  duties 
of  citizenship,  and  who  declines  to  be  bound  by  its  ob 
ligations. 

These  rules  are  illustrated  by  several  cases  arising 
in  the  foreign  relations  of  the  United  States. 

(1.)  Heinrich's  Case. — This  occurred  in  1872.  Hein- 
rich  was  born  in  the  city  of  New  York,  in  1850,  of 
Austrian  parents  who  were  temporarily  resident  there. 
They  were  never  naturalized  in  the  United  States,  and 
so,  in  accordance  with  the  naturalization  treaty  with 
Austria,  were  never  citizens  of  the  United  States.  In 
1852  Heinrich  returned  with  his  parents  to  Austria, 
where  for  the  next  twenty  years  he  remained,  per- 
forming none  of  the  duties  of  an  American  citizen, 
but,  on  the  contrary,  enjoying  some  of  the  rights  and 
privileges  of  Austrian  citizenship.  In  1872  he  was 
notified  that  he  would  be  held  to  the  performance  of 
his  military  duties  in  Austria.  To  this  he  demurred, 
claiming  the  interposition  of  the  American  minister  in 
his  behalf,  upon  the  ground  that  he  was  an  American 


NATIONAL  CHARACTER.  103 

citizen.  According  to  the  several  municipal  laws  of 
the  interested  states  he  was  a  native-born  citizen — of 
the  United  States  because  born  in  its  territory;  of 
Austria  because  of  his  Austrian  parentage.  After  some 
correspondence  the  United  States  government  declined 
to  interfere  in  his  behalf  on  the  ground  that  he  had 
expatriated  himself :  1st.  By  his  long  residence  in  Aus- 
tria, by  which  he  created  the  presumption  that  he  in- 
tended to  reside  there  permanently ;  2d.  By  his  having 
signified  his  willingness  to  become  an  Austrian  sub- 

o  o 

ject,  by  obtaining  passports  and  travelling  under  them 
in  that  character. 

Case  of  Martin  Koszta. — Koszta  was  a  Hungarian, 
and  so  a  native  born  citizen  of  Austria.  He  was  con- 
cerned in  the  revolutionary  outbreak  of  1848,  and  at 
the  unsuccessful  termination  of  that  movement  effected 
his  escape  to  Turkey,  where  he  was  arrested  and  im- 
prisoned, but  finally  released  on  condition  that  he 
should  quit  Turkish  territory.  He  went  to  the  United 
States,  took  up  a  residence  there,  and  at  the  proper 
time  made  a  declaration  in  due  form  of  his  intention 
to  become  an  American  citizen.  In  1853,  and  so  before 
the  naturalization  process  had  been  completed  in  his 
case,  he  went  to  Smyrna  on  business,  and  was  there 
granted  a  travelling  pass  by  the  United  States  consul 
This  paper  conferred  upon  him,  to  a  certain  extent,  the 
national  character  of  an  American,  and  stated  that  he 
was  entitled  to  American  protection.  Not  long  after 
his  arrival  in  Smyrna  his  presence  was  made  known 
to  the  Austrian  consul,  and,  on  June  21,  1853,  Koszta 
was  seized  by  certain  persons  in  the  pay  of  the  Aus- 
trian consulate,  and  taken  out  into  the  harbor  in  a 
boat.  At  some  distance  from  the  shore  he  was  thrown 


104:  OUTLINES  OF  INTERNATIONAL  LAW. 

into  the  water,  and  was  picked  up  by  boats  from  the 
Austrian  man-of-war  Hussar.  He  was  taken  on  board 
that  ship  and  was  there  confined  with  a  view  to  his 
ultimate  conveyance  within  Austrian  jurisdiction.1 

The  United  States  consul  at  Smyrna  protested 
against  this  arbitrary  action,  but  without  avail,  and,  as 
a  last  resort,  reported  the  circumstance  to  the  Ameri- 
can Legation  at  Constantinople.  The  St.  Louis,  a  pub- 
lic armed  vessel  of  the  United  States,  commanded  by 
Captain  Ingraham,  happened  to  be  lying  in  the  harbor 
of  Constantinople  at  the  time,  and  Captain  Ingraham 
was  requested  by  the  Charge,  $  Affaires  to  proceed  to 
Smyrna  and  demand  Koszta's  release,  if  necessary  by 
a  resort  to  force.  In  compliance  with  these  instruc- 
tions Captain  Ingraham  went  to  Smyrna  and  demand- 
ed the  surrender  of  Koszta,  stating  that  unless  he  were 
delivered  up  he  should  take  him  by  force  of  arms.  As 
such  a  conflict,  aside  from  its  international  conse- 
quences, would  have  led  to  the  certain  destruction  of 
much  of  the  shipping  in  the  harbor,  and  to  the  possi- 
ble destruction  of  the  town  itself,  the  French  consul 
offered  his  mediation,  and  Koszta  was  delivered  into 
his  custody  pending  the  result  of  the  negotiations  in 
his  case.  As  a  result  Koszta  was  conveyed  back  to  the 
United  States,  the  Austrian  government  reserving  the 
right  to  proceed  against  him  should  he  ever  return  to 
Turkish  territory. 

This  case  has  been  frequently  cited  as  illustrating 
many  phases  of  the  question  of  citizenship  and  alle- 
giance. The  following  are  the  more  important  consid- 
erations involved : 

1  "Foreign  Relations  of  the  United  States,"  1873,  part  2,  p.  1298. 


NATIONAL  CHARACTER.  1Q5 

(a.)  The  papers  in  Koszta's  possession  gave  him  the 
character  of  an  American  citizen  in  so  far  as  the  Turk- 
ish government  was  concerned,  and  entitled  him  to  its 
protection.  If  he  were  not  entitled  to  those  papers,  the 
question  resulting  was  one  for  decision  between  Tur- 
key and  the  United  States. 

(b.)  The  action  of  the  Austrian  consul  was  a  gross 
violation  of  the  sovereignty  of  Turkey,  and  a  serious 
infraction  of  the  rules  of  International  Law. 

(c.)  The  use  of  force  by  Captain  Ingraham  to  secure 
the  release  of  Koszta  was  also  without  warrant  of  In- 
ternational Law.  It  differed  from  that  of  the  Aus- 
trian officials  only  in  that  its  effects  were  to  vindicate 
the  sovereignty  of  Turkey.  ITpon  this  ground  it  was 
defended  at  the  time,  and  generally  justified. 

(d.)  Koszta  was  not  an  American  citizen.  His  dec- 
laration of  intention  to  become  one,  however,  to  that 
extent  entitled  him  to  a  qualified  amount  of  protection 
on  the  part  of  the  United  States ;  especially  in  a  state 
where  he  had  the  character  of  an  alien,  pure  and  sim- 
ple, and  where  the  question  of  his  partially  acquired 
allegiance  was  not  complicated  by  considerations  aris- 
ing out  of  his  allegiance  of  nativity. 

(0.)  Had  his  case  been  drawn  in  question  by  any  dis- 
interested power,  Koszta  would  have  been  regarded  as 
an  Austrian  subject.  This  would  have  resulted  from 
the  application  of  the  rule  of  nativity  to  his  case. 

(f.)  If  a  formal  decree  or  sentence  of  exile  was  had 
against  Koszta  in  Austria,  that  power  could  have  re- 
tained jurisdiction  over  him  to  the  extent  of  giving 
perpetual  effect  to  its  decree  of  banishment,  by  pre- 
venting his  return  to  Austrian  territory. 

Largomarsini 's  Case.  —  Largomarsini  was  born  in 


106  OUTLINES  OF  INTERNATIONAL  LAW. 

Italy,  of  Italian  parents,  and  when  two  years  of  age 
was  brought  by  them  to  the  United  States.  Upon 
reaching  the  proper  age,  and  having  fulfilled  the  usual 
conditions  of  residence  and  intention,  he  was  natural- 
ized in  San  Francisco,  a  place  which  he  had  chosen  as 
his  durable  abode.  He  resided  there  and  elsewhere  in 
California  until  1875,  when  he  visited  Italy  for  a  tem- 
porary purpose,  and  with  the  intention  of  returning  to 
the  United  States  and  of  resuming  his  residence  there 
at  the  end  of  a  year.  A  few  days  after  his  arrival  in 
Italy  he  was  notified  that  he  had  been  drafted  into 
the  military  service.  Claiming  to  be  a  citizen  of  the 
United  States,  he  refused  to  obey  the  summons,  and 
upon  this  refusal  he  was  arrested  as  a  deserter  from 
the  Italian  military  service.  His  case  was  appealed  to 
the  highest  military  tribunal,  where  the  charge  of  de- 
sertion was  not  sustained,  but  he  was  held  to  the  per- 
formance of  his  military  service.  Intervention  was 
made  in  his  behalf  by  the  United  States  minister,  but 
without  avail,  the  refusal  to  release  him  being  based 
upon  the  ground  that  he  was  an  Italian  subject,  and 
that  his  naturalization  in  the  United  States  had  no  ef- 
fect upon  his  individual  status  when  he  returned  to 
Italy. 

Case  of  Ungar. — Leopold  Ungar  was  born  in  Bava- 
ria, but  emigrated  to  the  United  States,  where  he  com- 
pleted the  naturalization  process  in  1856.  In  1857  he 
obtained  a  passport  from  the  Department  of  State  and 
returned  to  Europe,  passing  and  repassing  several  times 
between  the  two  countries.  The  last  vise  of  his  pass- 
port bore  the  date  of  1861.  In  1873  he  arrived  in 
Egypt  from  Italy,  under  an  assumed  name,  and  was 
arrested  at  the  instance  of  the  Prussian  consul  in  Alex- 


NATIONAL  CHARACTER.  107 

dria.  with  a  view  to  his  extradition  for  a  crime  com- 
mitted in  Cologne.  He  claimed  to  be  an  American 
citizen,  but  protection  was  denied  him.  1.  Because  he 
had  expatriated  himself ;  this  was  proven  by  long  ab- 
sence from  the  United  States  with  no  intention  of  re- 
turning. 2.  Because  he  had  voluntarily  subjected  him- 
self to  Prussian  jurisdiction  by  committing  a  crime 
within  Prussian  territory.  His  flight  to  Egypt  in  no 
way  affected  the  question  of  his  national  character,  as 
he  was  subject  to  the  extradition  process  in  Egypt,  on 
the  demand  of  Prussia,  in  accordance  with  the  terms 
of  an  existing  treaty  of  extradition  between  the  two 
countries. 

It  is  thus  seen  that  to  make  perfect  and  complete 
the  change  of  national  character,  in  the  case  of  an  in- 
dividual, the  existence  of  a  treaty  is  necessary.  Many 
such  treaties  have  been  negotiated  in  recent  times. 

The  United  States  has  thus  far  negotiated  twelve 
naturalization  treaties,  the  first  of  them  with  Prussia, 
in  1868.  AH  of  them,  except  that  with  Great  Britain, 
stipulate  for  a  five  years'  period  of  residence  as  a  con- 
dition essential  to  naturalization.  All  except  two '  ex- 
precsly  provide  that  a  naturalized  citizen  returning  to 
his  native  country  shall  be  held  liable  to  trial  for  all 
actions  punishable  by  the  laws  of  his  native  state,  com- 
mitted prior  to  his  emigration.  Nine  of  them  contain 
the  provision  that  an  individual  returning  to  his  native 
country  shall,  after  a  residence  of  two  years,  be  pre- 
sumed to  have  renounced  his  acquired  citizenship.  The 
naturalization  treaties  of  the  United  States  have  thus 
far  successfully  endured  the  test  of  practical  applica- 

1  Great  Britain  and  Denmark. 


108  OUTLINES  OF  INTERNATIONAL  LAW. 

tion.  They  have  been  administered  in  a  liberal  spirit, 
and  but  few  cases  have  arisen  under  them  for  which 
they  have  not  afforded  an  adequate  remedy. 

5.  Expatriation. — The  term  expatriation  is  applied 
to  the  process  by  which  the  allegiance  of  an  individual 
to  a  particular  state  is  terminated.  It  may  be  volun- 
tary, the  act  originating  with  the  individual ;  or  it 
may  result  from  the  operation  of  law ;  in  the  latter  case 
it  is  called  exile,  or  banishment.  The  act  of  voluntary 
expatriation  is,  in  strictness,  an  essential  incident  of 
the  naturalization  process ;  for  an  individual  rarely  puts 
off  his  citizenship  unless  with  the  intention  of  changing 
his  national  character,  and  this  change  can  only  be  ef- 
fected by  undergoing  the  process  of  naturalization. 

The  doctrine  of  indelible  allegiance  is  now  either 
tacitly  or  expressly  abandoned  by  nearly  all  states 
that  are  parties  to  International  Law,  and  there  is  very 
general  agreement  among  them  as  to  the  following 
fundamental  principles : 

(a.)  From  birth,  to  the  date  of  emigration,  the  juris- 
diction of  the  country  of  nativity  is  complete.  It  may 
therefore  determine  the  conditions  to  be  fulfilled  by 
its  subjects  before  emigration,  as  an  incident  of  its 
municipal  jurisdiction. 

(b.)  The  act  of  emigration  cancels  no  obligation  in- 
curred prior  to  its  date. 

(c.)  A  citizen,  or  subject  of  a  state,  by  undergoing 
the  process  of  naturalization  in  a  foreign  state,  is  not 
released  from  any  obligation  to  the  state  of  his  nativ- 
ity incurred  previous  to  his  emigration.1 

(d.)  The  acceptance  by  an  individual  of  political  or 

1  See  case  of  Largomarsini,  p.  106. 


NATIONAL  CHARACTER.  109 

military  office  in  the  service  of  a  foreign  state,  without 
the  consent  of  his  own  government,  is  equivalent  to 
expatriation.  Whether  this  shall  be  permanent  or  not 
will  depend  on  the  municipal  law  of  the  individual's 
state. 

While  the  restrictions  which  are  placed  upon  emi- 
gration by  the  municipal  laws  of  different  states  vary 
considerably,  it  is  still  possible  to  assign  each  of  them 
to  one  of  two  groups.  In  most  of  the  Continental 
states  of  Europe  where  a  system  of  military  conscrip- 
tion prevails,  the  act  of  emigration,  without  permission, 
involves  a  forfeiture  of  civil  rights.  "  Each  country 
hampers  expatriation  with  such  restrictions  as  it  thinks 
fit,  and  this  must  probably  continue  to  be  the  case  so 
long  as  the  present  conscription  laws  are  retained." l 
In  England  and  the  United  States  a  more  liberal  pol- 
icy prevails.  In  England  the  subject  of  expatriation 
is  regulated  by  the  Naturalization  Act  of  1870,  which 
concedes  the  right  of  voluntary  expatriation,  and  re- 
gards British  subjects  as  expatriate  so  soon  as  they 
have  completed  the  process  of  naturalization  in  a  for- 
eign state.  In  the  United  States  a  difference  of  view 
existed,  for  a  long  time,  among  the  different  depart- 
ments of  the  Federal  government.  The  view  of  the 
judiciary  has  been  that  citizenship  was  a  compact  be- 
tween a  state  and  each  of  its  subjects,  and  that  this 
compact  could  not  be  dissolved  by  the  latter  without 
the  consent  of  the  former,  as  expressed  in  its  municipal 
laws.  This  view  is  in  substance  that  maintained  by 
the  English  courts  on  the  same  subject.  The  view  of 

1  Opinion  of  Mr.  Abbot  to  English  Naturalization  Commission, 
"  United  States  Foreign  Relations,"  1873,  p.  1248. 


HO  OUTLINES  OF   INTERNATIONAL  LAW. 

the  political  departments  of  the  government  has  always 
been  that  the  right  of  expatriation  was  an  individual 
right,  existing  at  all  times,  and  capable  of  being  exer- 
cised at  will.  This  view  they  have  constantly  endeav- 
ored to  incorporate  into  the  conventional  law  of  the 
United  States.  In  1868  an  Act  of  Congress  was  passed 
declaring  that  "  the  right  of  expatriation  is  a  natural 
and  inherent  right  of  all  people,  indispensable  to  the 
enjoyment  of  the  rights  of  life,  liberty,  and  the  pursuit 
of  happiness."  This  act,  which  is  declaratory  in  char- 
acter, has  never  received  judicial  interpretation. 

6.  Aliens  and  Domicile. — The  peculiar  view  of  al- 
legiance which  prevailed  during  the  feudal  period  sur- 
vived the  downfall  of  the  system  in  which  it  had  orig- 
inated, and,  in  the  form  of  the  doctrine  of  indelible 
allegiance,  became  part  of  the  internal  political  policy 
of  most  European  states.  An  individual,  born  a  sub- 
ject, always  retained  that  character.  Such  personal 
and  property  rights  as  he  was  permitted  to  enjoy  grew 
out  of  the  fact  of  his  allegiance  to  his  native  sovereign, 
and  were  not  recognized  beyond  that  sovereign's  terri- 
tories. The  result  was  to  make  the  lot  of  an  alien  a 
particularly  hard  one  in  early  times.  So  soon  as  he 
passed  the  frontiers,  and  entered  the  territory  of  an- 
other state,  he  was  regarded  as  being  without  rights. 
Such  privileges  of  residence  and  occupation  as  he  en- 
joyed were  held  upon  sufferance  only,  and  could  be 
withdrawn  or  cancelled  at  the  pleasure  of  the  sovereign 
in  whose  territory  he  was  resident.  If  he  died  in  a 
foreign  country  his  property,  both  real  and  personal, 
was  forfeited  to  the  sovereign  in  accordance  with  the 
droit  d?aubaine;  or,  at  a  later  period,  when  more  hu- 
mane usages  had  begun  to  prevail,  was  heavily  taxed 


NATIONAL  CHARACTER.  HI 

when  withdrawn  from  the  territory,  in  accordance 
with  the  droit  de  detraction. 

As  civilization  increased,  and  as  commerce  and  inter- 
state intercourse  became  general,  these  harsh  provisions 
were  gradually  relaxed,  though  they  did  not  finally 
disappear  until  the  beginning  of  the  present  century. 
Other  restrictions  remained,  however,  notably  a  disa- 
bility in  the  matter  of  holding  land,  and  "  it  is  only  of 
late  years  that  the  right  of  holding  lands  on  the  same 
conditions  as  subjects  has  been  conceded  to  foreigners 
by  most  countries."1  In  the  matter  of  holding  and 

1  Boyd's  Wheaton,  p.  112:  "  In  Belgium  this  was  effected  by  the 
law  of  the  27th  of  April,  1865.*  Russia  conceded  the  privilege  in 
1860. b  Some  of  the  Swiss  cantons  do  not  even  now  permit  foreign- 
ers to  hold  real  property  without  the  express  sanction  of  the  cantonal 
government  unless  there  be  a  treaty  to  that  effect.'  Austria,11  the 
Netherlands,6  and  Sweden/  only  accord  the  right  on  condition  of 
reciprocity  in  the  foreigner's  country.  The  constitution  of  the  Ger- 
man empire  provides  that  every  person  belonging  to  one  of  the  con- 
federated states  is  to  be  treated  in  every  other  as  a  born  native,  and 
to  be  permitted  to  acquire  real  estate.*  But,  as  regards  other  coun- 
tries, the  laws  of  Bavaria,  Prussia,  Saxony,  and  Wurtemberg  exact 
for  their  own  subjects,  when  abroad,  the  same  rights  they  extend  to 
foreigners  in  their  own  dominions.11  In  Italy,  Denmark,  and  Greece1 
aliens  are  under  no  disabilities  in  this  respect.  The  ownership  of 
land  in  the  United  States  is  regulated  by  the  laws  of  the  individual 
states  of  the  Union.  Some  states  impose  no  restrictions  on  foreign- 
ers; others  require  residence  and  an  oath  of  allegiance;  in  others  a 
declaration  of  an  intention  to  become  a  naturalized  citizen  of  the 
United  States  is  necessary."' 

•"Report  of  (English)  Naturalization  Commission,  1869,"  p.  115. 
b  Ibid.,  p.  138.  •  Ibid.,  p.  131.  d  "  Civil  Code  of  Austria,"  §  33. 

e  "  Civil  Code  of  the  Netherlands,"  §§  S84r-957.  '  "  Swedish  Statute  of 
Inheritance,"  chap,  xv.,  §2.  *  Ilertslet,  "Map  of  Europe  by  Treaty," 

art  iii.,  vol.  iii.,  p.  1931.  >>  "Report  of  (English)  Naturalization  Com- 
mission, 1869,"  pp.  114,  124,  129,  138.  » Ibid.,  p.  116;  Italian  Civil 
Code,"  art.  iii. ;  "  Civil  Code  of  Greece,"  art.  v.  >  "Report  of  (Eng- 
lish) Naturalization  Commission,  1869,"  p.  131. 


112  OUTLINES  OF   INTERNATIONAL  LAW. 

transferring  personal  property,  the  practice  of  nations 
has  been  much  more  liberal.  This  difference  of  view 
in  regard  to  the  two  kinds  of  property  was  due  in  part 
to  the  fact  that,  in  early  times,  only  land  and  immov- 
ables were  recognized  as  having  the  quality  of  prop- 
erty, and  in  part  to  the  fact  that  personal  property, 
especially  in  the  form  of  money  and  valuables,  could 
be  easily  concealed  and  withdrawn  from  the  operation 
of  the  law.  The  result  was  that  personal  property 
began  to  be  made  the  subject  of  legal  regulation  at  a 
much  later  date,  and  when  more  enlightened  views 
had  begun  to  prevail  upon  the  subject  of  ownership 
and  property  regulation.1 

The  term  alien  i&  applied  to  any  person  within  the 
territory  of  a  state,  at  any  time,  who  is  not  a  citizen 
or  subject  of  that  state,  either  by  birth  or  naturaliza- 
tion. These  foreigners  or  strangers  are  susceptible  of 
classification  into, 

(«.)  Aliens,  or  Aliens  Proper,  including  all  those  per- 
sons who  are  sojourning  temporarily  within  a  state, 
or  who  are  passing  through  its  territory. 

(b.)  Domiciled  Strangers,  including  all  those  persons 
who  have  acquired  a  legal  domicile  at  some  place  with- 
in its  territorial  jurisdiction. 

From  the  principle  that  all  persons  within  the  terri- 

"  Feudal  principles  were  maintained  so  long  in  England  that,  until 
the  year  1870,  an  alien  was  incapable  of  holding  land  for  more  than 
twenty-one  years;  that  is,  he  could  not  purchase  a  freehold.  This, 
however,  was  remedied  by  the  Naturalization  Act  of  1870,a  which 
relieved  aliens  of  most  of  their  disabilities,  and,  as  regards  land,  placed 
them  on  the  same  footing  as  subjects." — Boyd's  Wheaton,  p.  113. 

1  Amos,  "  Science  of  Law,"  p.  164. 


33  and  34  Victoria,  chap,  xiv.,  §  2. 


NATIONAL  CHARACTER.  H3 

tory  of  a  state,  at  any  time,  are  subject  to,  and  are 
protected  by,  its  municipal  laws,  it  follows  that  aliens, 
so  long  as  they  obey  those  laws,  will  be  as  fully  pro- 
tected by  them  as  are  the  citizens  of  the  state  in  which 
they  are  resident.  They  are  subject  to  some  restrictions, 
however,  from  which  citizens  are  exempt ;  and,  on  the 
other  hand,  are  not  held  to  the  performance  of  certain 
duties  to  which  citizens  are  liable  from  the  fact  of  their 
allegiance.  The  most  important  of  these  is  an  exemption 
from  personal  imposts1  and  from  obligatory  military 
service — a  duty,  from  its  nature,  incumbent  upon  citi- 
zens alone.  "  During  the  American  civil  war  the  pro- 
tection of  England  was  frequently  demanded  by  Brit- 
ish subjects  against  conscription  in  the  United  States 
army.  Lord  Lyons  was  instructed  that  there  is  no 
rule  or  principle  of  International  Law  which  prohibits 
the  government  of  any  country  from  requiring  aliens 
resident  within  its  territories  to  serve  in  the  militia  or 
police  of  the  country,  or  to  contribute  to  the  support 
of  such  establishments.2  But  Her  Majesty's  govern- 
ment would  not  consent  to  British  subjects  being  com- 
pelled to  serve  in  the  armies  of  either  party  where,  be- 
sides the  ordinary  incidents  of  battle,  they  would  be 
exposed  to  be  treated  as  rebels  or  traitors  in  a  quarrel  in 
\vhich,  as  aliens,  they  had  no  concern,  and  on  their  re- 
turn to  England  would  incur  the  penalties  imposed 
on  British  subjects  for  having  taken  part  in  the  war.3 

1  The  term  impost,  as  here  used,  refers  to  impositions  of  personal 
service,  as  for  jury  duty,  etc.,  and  to  impositions  of  money  in  the 
way  of  poll-taxes,  or  other  levies  upon  citizens  alone. 

4  Despatch  to  Lord  Lyons,  No.  76,  April  4,  1861. 

3  Ibid.,  No.  349,  Oct.  7,  1861;  "Parliamentary  Papers,  North 
America,"  1864,  No.  13,  p.  34. 


OUTLINES  OF  INTERNATIONAL  LAW. 

All  who  could  prove  their  British  nationality  were, 
accordingly,  exempted  from  military  service.1  But  if 
a  British  subject  had  become  naturalized  in  America, 
England  refused  to  protect  him  so  long  as  he  remained 
there.2  Individuals  who  had  declared  their  intention 
of  becoming  naturalized,  but  had  not  completed  the 
necessary  formalities,  were  also  treated  as  aliens,  and 
exempted ; 3  but  Her  Majesty's  government  declined  to 
interfere  in  their  behalf  if  they  had  voted  at  elections, 
or  in  any  way  exercised  any  of  the  exclusive  privileges 
of  a  citizen.4  In  1863  an  Act  of  Congress  was  passed 
specially  including  'intended'  citizens  in  a  further 
enrollment  of  the  militia ; B  and  a  proclamation  of  the 
President  allowed  sixty-five  days  to  such  persons  to 
leave  the  country,  or  become  liable  to  be  enrolled  by 
remaining.  To  this  Great  Britain  acquiesced,  the  pe- 
riod allowed  for  departure  being  deemed  sufficient.8 
It  was  regarded  as  an  established  principle  that  a  gov- 
ernment might,  by  an  ex  post  facto  law,  include  in  its 
conscription  any  persons  permanently  resident  in  its 
territory,  provided  it  allowed  them  reasonable  time 
and  facilities  for  departure  on  the  promulgation  of 
such  a  law." 7  s 

In  states  where  a  military  establishment  is  main- 
tained by  a  system  of  voluntary  enlistments,  few  re- 

1  Despatch  to  Lord  Lyons,  No.  379,  July  29,  1861. 
8  Ibid.,  No.  259,  June  7,  1862. 

3  Mr.  Seward  to  Mr.  Stuart,  Aug.  20,  1862. 

4  Consular  Circular  from  Mr.  Stuart,  No.  99,  July  25,  1862. 

5  "United  States  Statutes  at  Large,"  vol.  xii.,  p.  731. 

6  Despatch  to  Lord  Lyons,  No.  485,  Aug.  31,  1863. 

7  "Parliamentary  Papers,  North  America,"  1863,  No.  13,  p.  34; 
Despatch  to  Lord  Lyons,  No.  293,  Nov.  27,  1862. 

8  Boyd's  Wheaton,  pp.  209,  210. 


NATIONAL  CHARACTER. 

strictions  are  placed  upon  the  admission  of  aliens  to 
the  military  or  naval  service.  By  such  an  act,  how- 
ever, and  during  the  period  of  such  service,  an  alien 
forfeits  the  protection  of  his  own  government,  and 
must  look  for  protection  to  the  state  under  whose 
flag  he  serves.  In  nearly  all  states  aliens  are  debarred 
from  holding  public  office  of  a  political  character,  and 
are  denied  the  right  of  suffrage,  when  that  right  exists. 
Some  states  still  place  them  under  special  disabilities 
in  the  matter  of  holding  land,  or  engaging  in  business, 
or  following  certain  trades  or  professions ;  others  make 
this  conditional  upon  reciprocity.1  In  nearly  all  the 
Continental  states  of  Europe  aliens  are  placed  at  some 
disadvantage  as  regards  subjects  in  instituting  or  main- 
taining suits  at  law,  and  in  testifying  in  certain  cases. 
They  also  require  a  register  of  aliens  to  be  kept,  and, 
in  many  instances,  claim  and  exercise  the  right  of  ex- 
pelling them  from  their  territories  for  cause.  Many 
of  these  restrictions  are  reasonable,  and,  if  they  are 
generally  known,  furnish  no  ground  of  complaint  to 
other  states  whose  citizens  are  subjected  to  them.  In 
some  cases,  notably  in  certain  Mohammedan  and  pa- 
gan countries,  whose  systems  of  government  and  law 
are  radically  different  from  those  of  Christendom,  the 
separate  treatment  of  aliens  has  been  made  the  sub- 
ject of  treaty  stipulation. 


1  In  the  courts  of  the  United  States  alien  friends  are  entitled  to 
the  same  protection  in  their  rights  as  citizens.  Nor  are  their  suits 
barred  by  proof  that  the  remedy  is  not  reciprocal.  Tayler  vs.  Car- 
penter, Story,  vol.  iii.,  p.  458.  Aliens  in  the  United  States  are  not 
liable  to  militia  duty.  For  treatment  of  alien  enemies  by  the  Unit- 
ed States,  see  §§  4067-4070  of  the  "Revised  Statutes  of  the  United 
States." 


OUTLINES  OF  INTERNATIONAL  LAW. 

Interference  T)y  a  Government  in  Behalf  of  its  Citi- 
zens Abroad. — If  the  government  of  a  state  has  reason 
to  believe  that  its  citizens  are  being  subjected  to  restric- 
tions which  are  unjust,  excessive,  or  unreasonable,  it  is 
usual  to  represent  the  case  to  the  offending  govern- 
ment in  the  diplomatic  way,  and  to  request  their  mod- 
ification or  removal.  Should  these  means  fail  to  secure 
the  desired  result,  and  should  the  restrictions  be  of 
such  character  as  to  amount  to  a  denial  of  justice,  a  state 
would  be  justified  in  resorting  to  retaliatory  measures, 
and  could  impose  similar  or  equivalent  restrictions  upon 
the  subjects  of  the  offending  state  who  might  be  found 
within  its  jurisdiction. 

7.  Domicile. — Of  all  the  persons  residing  in  a  state 
at  any  given  time  two  classes  have  elsewhere  been  de- 
scribed— aliens  and  citizens.  Between  these  extremes 
is  found  a  large  class  of  persons  who  are  not  tempora- 
ry sojourners,  neither  have  they  the  quality  of  citizen- 
ship. Their  residence  is  not  transient,  as  is  that  of 
aliens  proper,  and  they  are  not  members  of  the  body 
politic,  owing  it  the  allegiance  of  defence,  and  enjoy- 
ing the  rights  and  political  privileges  of  citizens.  These 
persons  are  called  domiciled  strangers.  While  their 
residence  is  to  some  extent  permanent,  they  are  unwill- 
ing, for  reasons  of  their  own,  to  give  up  their  citizen- 
ship of  nativity ;  and  it  is  not  inconsistent  with  their 
peculiar  relation  that  they  should  cherish  a  remote  in- 
tention of  returning  to  their  native  countries  should  it 
ever  become  desirable  to  do  so. 

Definition  of  Domicile. — Domicile  may,  therefore, 
be  defined  as  the  place  which  an  individual  has  freely 
chosen  as  the  centre  of  his  domestic  and  jural  relations, 
and  a  domiciled  stranger  is  an  alien  who,  for  purposes 


NATIONAL  CHARACTER. 

of  residence  or  business,  has  selected  a  certain  place 
as  his  durable  abode,  with  no  present  intention  of  re- 
moving therefrom. 

There  has  been  some  confusion  expressed  in  the 
works  of  writers  upon  the  subject  as  to  the  precise 
meaning  of  the  terms  citizenship  and  domicile.  From 
the  definition  given  it  will  be  seen  that  they  are  not 
synonymous  ;  indeed,  in  strictness,  they  have  no  pos- 
sible connection  with  each  other.  The  citizen  is  a  creat- 
ure of  the  municipal  law  of  a  state,  with  which  other 
states  ordinarily  have  no  concern.  The  rules  of  domi- 
cile determine  the  status  of  an  individual  from  the  stand- 
point of  International  Law,  and  have  no  necessary  con- 
nection with  citizenship.  Domicile  is  a  fact,  and,  when 
the  domicile  of  an  individual  is  drawn  in  question,  is 
proved,  like  other  facts,  by  evidence  as  to  residence  or 
intention.  Citizenship  results  from  birth,  or  the  oper- 
ation of  law,  and  is  acquired  by  undergoing  a  legal 
process,  the  various  steps  of  which  are  regulated  by  the 
municipal  law  of  a  state.  It  is,  moreover,  a  matter  of  le- 
gal record,  and,  when  the  citizenship  of  an  individual  is 
questioned,  it  is  established  by  the  production  of  a  duly 
authenticated  certificate  of  origin,  or  naturalization. 

In  one  state  citizenship  may  be  acquired  with  but 
little  effort ;  in  another  with  extreme  difficulty,  or  not 
at  all.  This  is  a  matter  of  strictly  municipal  concern, 
which  every  state  regulates  for  itself  as  an  incident  of 
its  sovereignty.  A  state  may  make  such  rules  on  the 
subjects  of  naturalization  and  expatriation  as  it  deems 
just,  or  suited  to  its  policy,  the  only  limitation  being 
that  such  laws  must  not  project  themselves  into  the 
jurisdiction  of  another  state,  and  give  rise  there  to  a 
conflict  of  allegiance. 


OUTLINES  OF  INTERNATIONAL  LAW. 

The  rules  of  domicile,  in  so  far  as  they  are  recog- 
nized and  sanctioned  by  International  Law,  must,  like 
all  its  rules,  be  based  upon  the  general  consent  of  na- 
tions. A  state  may,  by  its  municipal  laws,  grant  cer- 
tain privileges  to  domiciled  strangers,  but  those  privi- 
leges are  local  in  character,  not  international,  and  can 
have  no  effect  beyond  the  territorial  jurisdiction  of  the 
state  granting  them.  In  a  similar  way  several  states  may 
arrange,  by  treaty,  to  secure  for  their  subjects  special 
privileges  as  to  domicile  in  each  other's  territories,  or 
may  obtain  for  them  special  exemptions  from  the  op- 
eration of  certain  municipal  laws.  These  privileges 
and  exemptions,  however,  are  restricted  in  their  oper- 
ation to  the  territorial  limits  of  the  states  that  partici- 
pate in  the  treaty.  An  individual  may  also  have  a 
domicile  in  several  places  at  the  same  time ;  indeed,  a 
strict  application  of  the  international  rules  of  domicile 
may  cause  the  prize  courts  of  a  state  to  regard  a  fel- 
low-citizen as  an  alien  enemy.  The  opposite  rule  pre- 
vails as  to  citizenship,  and  an  individual,  in  his  charac- 
ter as  a  citizen  or  subject,  can  owe  allegiance  to  but 
one  state  at  the  same  time. 

Conditions  of  Domicile. — (a.)  To  constitute  domicile 
there  must  be  actual  residence,  with  the  intention  of  re- 
maining. This  intention  is  inferred  from  the  acts  of 
an  individual.  If  he  hires  or  purchases  a  place  of  res- 
idence, enters  into  business  relations,  makes  contracts 
which  will  require  considerable  time  for  their  execu- 
tion, or  does  any  acts  of  a  similar  character  which  are 
susceptible  of  being  proved  by  evidence,  a  court  will 
deduce  from  such  acts  that  intention  of  remaining 
which  constitutes  domicile. 

(5.)  Domicile  must  be  freely  chosen.     Constrained 


NATIONAL  CHARACTER. 

residence  does  not  give  domicile.  By  constrained  res- 
idence is  meant  any  residence  not  the  result  of  free 
choice  on  the  part  of  an  individual  otherwise  capable 
of  free  action.  The  residence  of  an  officer  in  the  mili- 
tary or  naval  service  is  of  this  character,  as  is  that  of 
ambassadors,  their  secretaries,  and  the  attaches  of  a  le- 
gation. The  domicile  of  these  persons  is  the  same  as 
their  citizenship,  native  or  acquired.  They  undergo 
no  change  of  domicile,  no  matter  how  long  they  may 
be  absent  from  home  or  resident  abroad,  provided 
such  residence  has  an  official  character,  and  is  in  obe- 
dience to  military  orders,  or  is  in  the  exercise  of  diplo- 
matic functions.  The  domicile  of  a  person  undergoing 
a  sentence  of  imprisonment,  exile,  or  banishment,  is 
not  changed  by  such  constrained  absence,  unless  the 
exile  or  banishment  be  in  the  execution  of  a  life-sen- 
tence. As  consuls  do  not  enjoy  the  privileges  of  ex- 
territoriality, they  become  domiciled,  for  most  pur- 
poses, at  the  place  where  they  reside  in  a  consular  ca- 
pacity. It  is  difficult,  however,  to  state  a  rule  of  dom- 
icile which  will  be  of  general  application  as  regards 
this  class  of  public  officers.  They  are  subject  to  the 
law  of  the  place  where  they  reside,  and  the  legality  of 
~their  private  acts  is  determined  by  the  local  law.  If, 
in  addition,  they  are  subjects  of  the  state  in  which 
they  are  resident  consuls,  they  differ  in  no  respect,  as 
to  citizenship  or  domicile,  from  other  citizens.  If,  on 
the  contrary,  they  are  citizens  of  the  state  which  they 
represent,  in  the  consular  capacity,  their  residence  is 
constrained,  and  their  domicile  is  unchanged.1 

1  Halleck,  vol.  i.,  p.  368;  Phillimore,  vol.  ii.,  pp.  310,  811;  Case 
of  The  Indian  Chief,  Robinson,  "Admiralty  Reports,"  vol.  iii.,  p. 
26;  The  Josephine,  Robinson,  vol.  iv.,  p.  26;  The  President,  Rob- 
inson, vol.  v.,  p.  277;  The  Falcon,  Robinson,  vol.  vi.,  p.  197. 


120  OUTLINES  OF  INTERNATIONAL  LAW. 

(<?.)  The  domicile  of  an  inferior  or  subordinate  per- 
son is  that  of  the  legal  superior.  Hence  the  domicile 
of  the  wife  is  that  of  the  husband ;  of  a  child,  that  of 
the  father,  if  legitimate,  or  of  the  mother,  if  illegiti- 
mate ;  of  a  ward,  that  of  the  guardian ;  of  a  slave,  that 
of  the  master.  A  change  in  the  domicile  of  the  supe- 
rior produces  a  similar  change  in  the  domicile  of  the 
inferior  or  dependent  person. 

(d.)  Domicile  is  always  presumed.1  When  once  the 
essential  conditions  of  residence  have  been  fulfilled  by 
an  individual,  and  when  the  facts  of  such  residence 
have  been  established  by  competent  testimony,  a  court 
is  bound  to  draw  the  inference  that  the  intention  is  to 
acquire  domicile.  This  rule  is  of  the  first  importance ; 
indeed,  no  other  rule  upon  this  subject  would  be  sus- 
ceptible of  legal  enforcement.  The  validity  of  a  per- 
son's acts  must  be  determined  by  one  of  two  systems 
of  law — (1)  that  of  his  nationality,  or  (2)  that  of  his 
domicile.  There  can  be  no  middle  ground;  one  or 
the  other  must  be  chosen ;  otherwise  the  greatest  con- 
fusion would  result.  Such  being  the  case,  less  hard- 
ship will  ensue  from  the  adoption  of  the  rule  that  the 
law  of  a  person's  domicile,  rather  than  that  of  his  na- 
tionality, shall  determine  the  validity  of  his  acts ;  for 
it  is  easier,  as  it  is  certainly  more  just  and  convenient, 
that  the  local  la/w  should  regulate  his  legal  and  busi- 
ness relations,  than  that  they  should  be  made  to  de- 
pend upon  the  law  of  a  distant  country.  Indeed,  the 
latter  course  would  be  obviously  impossible. 

(e.)  As  domicile  may  be  freely  chosen,  so  may  it  be 
relinquished  or  changed  at  the  will  of  the  individual. 

1  Halleck,  vol.  i.,  pp.  367,  36a 


NATIONAL  CHARACTER. 

To  effect  such  a  change  it  is  only  necessary  for  him 
to  fulfil,  in  another  state,  the  legal  conditions  of  domi- 
cile as  to  residence  or  intention.  Domicile  follows  the 
changed  conditions,  and  is  established  as  a  fact  when- 
ever  its  essential  conditions  are  perfected  or  complied 
with  in  any  place. 

The  rules  of  domicile  are  of  importance  because  they 
largely  determine  the  status  of  an  individual  at  Inter- 
national Law.  They  are  applied,  by  the  courts  of  all 
civilized  states,  in  the  decision  of  cases  arising  in  Pri- 
vate International  Law;  and  they  become  specially 
important  in  time  of  war,  since  by  them  the  character 
of  an  individual  as  an  enemy  or  neutral  is  fixed  and 
determined. 

References. — The  international  view  of  citizenship  has  changed 
so  radically  in  recent  times  as  to  render  obsolete  most  of  the  liter- 
ature, upon  the  subject  of  national  character,  which  antedates  the 
present  century.  For  an  account  of  the  origin  and  development 
of  the  principle  of  popular  sovereignty,  to  which  the  changed  view 
of  allegiance  is  largely  due,  see  Maine,  "  Popular  Institutions ;" 
Cooley,  "Constitutional  Law,'.'  pp.  25,  26;  Amos,  "Science  of 
Law,"  pp.  13-27.  For  the  old  view  of  allegiance,  see  Grotius, 
bk.  i.,  chap,  i.,  par.  v.,  note,  28-32;  chap,  iii.,  par.  ix. ;  bk.  ii., 
chap,  iii.,  par.  viii. ;  and  Vattel,  chaps,  v.  and  viii.  For  the  mod- 
ern view,  see  Halleck,  vol.  ii.,  chap.  xii. ;  Heffter,  chap,  i.,  §  ii. 
Considerable  interest  in  the  subject  of  allegiance  and  national 
character  was  manifested  by  many  nations  between  the  years  1860 
aud  1880.  During  this  period  a  number  of  naturalization  treaties 
were  negotiated.  For  information  upon  the  subject  of  Naturali- 
zation, Expatriation,  and  Domicile,  the  student  is  referred  to  ex- 
isting naturalization  treaties,  to  reports  of  commissions  upon  those 
subjects,  and  to  the  new  works,  or  new  editions  of  old  works, 
which  have  appeared  since  1870.  In  this  connection  see  Hall, 
appendix  iv.,  pp.  677-685 ;  Halleck,  vol.  i.,  chap.  xii. ;  Heffter, 
chap,  i.,  §  ii.  See,  also,  the  "  Report  of  the  English  Naturaliza- 


122  OUTLINES  OF   INTERNATIONAL   LAW. 

tion  Commission  of  1868"  ("Diplomatic  Correspondence  of  the 
United  States,  1873,"  part  ii.,  pp.  1232-1424).  and  the  naturaliza- 
tion treaties  of  the  United  States ;  "  Treaties  and  Conventions  of 
the  United  States,  1776-1870."  The  rules  of  domicile  are  very 
fully  discussed  in  Wharton  and  Story ;  Halleck,  vol.  i.,  chap.  xii. ; 
Heffter,  chap,  i.,  §  iii. ;  Phillimore,  vol.  iii.,  chaps,  iii.-xxviii. ; 
Hall,  pp.  202  and  428  et  seq. ;  Boyd's  Wheaton,  pp.  115-393 ;  Bar, 
"International  Law,"  pp.  84-109, 149,  150, 186-188,  322-326,  365- 
380,  653-672. 


CHAPTER  Y. 

EXTRADITION. 

1.  The  Right  of  Criminal  Jurisdiction. — The  right 
of  a  state  to  try  and  punish  crimes  committed  within 
its  territorial  limits  is  indisputable.  It  is  an  essential 
incident  of  its  sovereignty.  It  matters  not  by  whom 
such  crimes  are  committed,  for  all  persons,  whether 
aliens,  citizens,  or  domiciled  strangers,  are  alike  subject 
to  the  law  of  the  state  in  which  they  may  be  at  any 
time.  They  are  presumed  to  know  those  laws,  and  a 
plea  of  ignorance  as  to  the  law  will  not  shield  them 
from  the  consequences  of  disobedience.  Nor  can  an 
individual  claim  the  protection  of  his  own  government 
in  any  course  of  action  which  is  opposed  to  the  law  of 
the  state  in  which  he  is  sojourning.  He  can  demand 
such  protection,  as  a  matter  of  strict  right,  only  when 
his  behavior  has  been  correct,  and  his  conduct  in  all 
respects  legal. 

Duty  of  a  State  as  to  Crimes  Committed  Abroad. — 
The  duty  of  a  state  to  assist  other  states  in  the  execu- 
tion of  their  criminal  laws  is  less  generally  conceded. 
Some  writers  have  maintained  that  it  is  incumbent 
upon  every  state  to  refuse  asylum  to,  and  upon  proper 
application  •  to  deliver  up,  all  persons  charged  with 
crimes  of  excessive  atrocity,  or  which  aifect  the  peace 
and  security  of  society.  Chancellor  Kent  advocates 
this  view,  and  after  citing  authorities  in  its  support, 
gives  it  as  his  opinion  that  it  is  based  upon  the  plain- 


124  OUTLINES  OF  INTERNATIONAL  LAW. 

est  principles  of  justice.1  The  contrary  view,  that  ex- 
tradition is  a  matter  of  comity,  or  treaty  stipulation, 
has  been  as  ably  maintained,  and  is  now  more  gener- 
ally accepted  by  text  writers  of  authority,8  and  sanc- 
tioned by  the  usage  of  nations. 

Extradition  fiy  Comity  and  Treaty. — The  practice  of 
refusing  asylum  to  foreign  criminals,  and  of  surrender- 
ing them  through  comity,  prevails  to  a  considerable  ex- 
tent on  the  continent  of  Europe.  In  England  and  the 
United  States  the  almost  invariable  practice  has  been 
to  surrender  criminals  only  in  accordance  with  treaty 
stipulations.  While  no  positive  rule  can  be  laid  down 
upon  this  subject,  it  may,  perhaps,  be  said  that  extra- 
dition by  comity  is  more  common  among  states  hav- 
ing strongly  centralized  governments,  than  in  those 
in  which  representative  institutions  are  so  firmly  es- 
tablished as  to  constitute  an  efficient  check  upon  the 
executive  branch  of  the  government,  and.  where  re- 
strictions upon  personal  liberty  are  not  readily  toler- 
ated. 

Difference  of  View  as  to  Criminal  Jurisdiction. — 
The  views  as  to  criminal  jurisdiction  which  prevail  in 
different  states  vary  considerably,  and  depend,  in  any 
particular  state,  partly  upon  its  constitution  and  part- 
ly upon  the  source  from  which  it  derives  its  system  of 
law.  In  England  and  the  United  States,  where  the 
Common  Law  prevails,  criminal  jurisdiction  is  regarded 
as  strictly  territorial.  Crimes  are  tried  and  punished 
at  the  place  of  their  commission,  and  criminal  courts 
have  no  jurisdiction  over  offences  committed  beyond, 
or  outside  of,  certain  territorial  limits,  which  are  ex- 

1  Kent,  vol.  L,  p.  37. 

*  Hall,  pp.  48,  49;  Bar,  p.  17,  and  pp.  623-625,  685-686,  708-737. 


EXTKADITION.  125 

actly  defined  in  the  laws  which  create  them.  These 
states,  therefore,  are  willing  to  surrender  criminals  who 
have  taken  refuge  within  their  borders,  even  when 
they  are  subjects  of  the  surrendering  state.  They  ob- 
ject to  such  surrender  only  when  the  offence  is  of  a 
political  character,  when  the  definitions  of  crime  in 
the  demanding  state  are  much  stricter  than  their  own, 
or  when  the  forms  of  trial  are  such  as  to  be  regarded 
as  unjust,  or  unfair,  when  judged  by  their  own  stand- 
ards of  criminal  procedure.  Among  the  Continental 
states  of  Europe,  and  in  those  of  Central  and  South 
America,  whose  criminal  codes  are  largely  based  upon 
the  Roman  Law,  a  different  view  of  jurisdiction  pre- 
vails. The  law  of  the  state  is  presumed  to  follow  a 
subject  wherever  he  may  go,  and  to  control  and  regu- 
late his  actions  and  conduct  to  the  same  extent  abroad 
as  at  home.  Their  criminal  courts,  therefore,  have 
power  to  try  the  case  if  the  person  of  the  offender  is 
subject  to  their  jurisdiction,  and  so  can  punish  a  sub- 
ject after  his  return  home,  for  a  crime  committed 
abroad.  These  states,  therefore,  while  they  will  sur- 
render foreign  criminals  who  have  escaped  to  their 
territory,  hesitate,  and  often  decline,  to  surrender  their 
own  subjects  for  crimes  committed  abroad. 

As  a  result  of  increased  international  intercourse, 
and  with  the  rapid  extension  of  commerce  which  has 
taken  place  in  recent  times,  each  group  of  nations  has 
found  it  necessary  to  modify,  to  some  extent,  its  pe- 
culiar view  of  criminal  jurisdiction.  All  modern  na- 
tions punish  the  crime  of  piracy,  wherever  committed ; 
and  most  of  them  punish  their  own  subjects  for  en- 
gaging in  the  slave  trade.  England  and  the  United 
States  punish  many  crimes  committed  by  their  sub- 


126  OUTLINES  OF  INTERNATIONAL  LAW. 

jects  beyond  their  territorial  jurisdiction,  especially  on 
the  high  seas.  On  the  other  hand,  many  Continental 
states  find  it  no  longer  necessary  to  assert  so  extensive 
a  jurisdiction,  in  criminal  matters,  as  is  warranted  by 
their  legal  systems.  Jurisdiction  over  many  offences 
of  small  importance,  amounting  to  misdemeanors  at 
common  law,  is  now  generally  abandoned  by  them, 
and  crimes  of  a  more  serious  character  are  triable  only 
on  complaint  of  the  injured  party,  when  both  have 
come  within  their  territorial  jurisdiction.  Most  states, 
however,  punish  crimes  against  the  state,  such  as  trea- 
son, counterfeiting,  etc.,  wherever  committed,  when  the 
person  of  the  criminal  is  found  within  their  jurisdic- 
tion. 

2.  Definition. — The  term  extradition  is  applied  to 
that  legal  process  by  which  one  sovereign  state  sur- 
renders to  another  state,  for  trial,  the  person  of  a  crim- 
inal who  has  sought  refuge  within  its  territory. 

Methods  of  Extradition. — Extradition  may  be  effect- 
ed in  three  ways :  1st.  By  treaty ;  2d.  In  accordance 
with  the  authority  of  municipal  law ;  3d.  By  comity. 

Few  extradition  treaties  were  in  existence  at  the 
beginning  of  this  century,  and  most  of  those  now  in 
force  have  been  negotiated  within  the  last  thirty  years. 
Their  number  is  steadily  increasing,  and  the  present 
tendency  is  to  regulate  the  surrendry  of  criminals  ex- 
clusively in  accordance  with  their  stipulations.  These 
treaties  are  usually  construed  with  great  strictness; 
the  list  of  criminal  offences  contained  in  the  body  of 
the  treaty  is  rigidly  adhered  to,  and  requests  for  extra- 
dition of  persons  charged  with  crimes  not  mentioned 
in  such  lists  are  almost  invariably  refused. 

Extraditable  Offences. — The  crimes  for  which  extra- 


EXTRADITION.  J27 

dition  may  be  requested  are  those  as  to  which  there  is 
a  concurrence  of  opinion  among  all  civilized  states  as 
to  definition  and  punishment,  and  also  as  to  the  amount 
of  evidence  necessary  to  secure  a  conviction.  Wherever 
that  course  seems  necessary  they  are  accurately  defined 
in  treaties.  Those  common  to  most  extradition  treaties 
are,  arson,  assaults  of  an  aggravated  character,  bur- 
glary, counterfeiting,  embezzlement — (a)  of  public  funds 
by  a  public  officer,  (5)  by  any  persons,  hired  or  sala- 
ried, and  to  the  detriment  of  their  employers — forgery, 
murder,  piracy,  rape,  and  robbery. 

Request  for  Extradition,  by  whom  Made. — In  gen- 
eral the  request  for  extradition,  and  the  consequent 
surrender,  are  acts  of  high  sovereign  authority,  and 
are  made  in  the  formal  diplomatic  way.  In  the  ex- 
tradition treaty  between  the  United  States  and  Mex- 
ico, however,  requests  for  extradition  may  be  made  by 
the  governors,  or  other  civil  authorities,  of  the  frontier 
states,  or,  in  case  the  civil  authority  is  suspended,  then 
through  the  chief  military  officer  in  command  of  such 
state  or  territory. 

3.  Conditions  of  Extradition. — The  following  pro- 
visions are  included  in  most  treaties  and  statutes  on 
the  subject  of  extradition : 

(a.)  The  more  serious  crimes  only,  amounting  to  fel- 
ony at  common  law,  are  extraditable. 

(5.)  Those  crimes  only  are  extraditable  as  to  which 
there  is  a  general  agreement,  among  civilized  states,  in 
the  matter  of  definition,  proof,  and  punishment. 

(c.)  The  sufficiency  of  evidence  as  to  the  crime  for 
which  extradition  is  asked  is  determined  by  the  law 
of  the  state  in  which  the  criminal  has  taken  refuge. 

A  state,  before  giving  effect  to  a  request  for  ex- 


128  OUTLINES  OF  INTEKNATIONAL  LAW. 

tradition,  will  punish  the  criminal  for  any  offence 
which  he  may  have  committed  against  its  own  munic- 
ipal laws. 

(<?.)  Most  states  will  surrender  a  criminal  only  with 
the  understanding  that  he  is  to  be  tried  for  the  crime 
mentioned  in  the  request  for  extradition,  and  for  no 
other. 

(f.)  Many  states,  for  a  reason  already  given,  decline 
to  surrender  their  own  citizens,  or  subjects,  whose  ex- 
tradition is  asked  by  a  foreign  'state.1 

(</.)  Most  states  refuse  to  surrender  persons  charged 
with  political  crimes. 

(h.)  Due  regard  being  had  to  differences  between 
codes  of  criminal  law  and  procedure,  crimes  can  best 
be  tried  and  punished  at  the  place  where  they  were 
committed. 

4.  Extradition  Treaties  of  the  United  States. — The 
United  States  has  thus  far  negotiated  thirty-four  ex- 
tradition treaties.  The  first  was  entered  into  in  1794, 
and  is  comprised  in  Article  27  of  Jay's  Treaty  with 
England.  It  included  the  crimes  of  murder  and  forgery 
only,  and  contained  no  stipulation  as  to  the  manner  in 
which  persons,  charged  with  either  of  these  crimes, 
were  to  be  extradited.  No  legislation  was  had  by 
Congress  for  the  purpose  of  carrying  that  part  of  the 
treaty  into  effect,  and,  as  it  was  not  self-executing,  it 
was  held  to  be  legally  inoperative,  and  expired  by  lim- 
itation in  1806.  I  can  find  but  a  single  instance  in 
which  it  was  attempted  to  surrender  a  criminal  in  ac- 
cordance with  the  extradition  clause  of  this  treaty. 
One  Jonathan  Bobbins,  who  had  participated  in  an 

1  Boyd's  Wheaton,  pp.  165,  166. 


EXTRADITION.  129 

act  of  mutiny  on  board  the  British  ship  Hermione,  in 
1791,  was  arrested  in  Charleston  in  1799.  Judge  Bee, 
of  the  United  States  District  Court,  was  notified  by 
the  Secretary  of  State  that  a  demand  had  been  made 
for  his  delivery  as  a  fugitive  criminal ;  and  that  the 
President  advised,  in  the  event  of  the  evidence  being 
deemed  sufficient  to  sustain  the  charge,  that  the  pris- 
oner be  delivered  to  the  British  consul.  Bobbins  was 
soon  after  brought  before  the  District  Court  on  a  writ 
of  habeas  corpus.  A  hearing  was  had  and  the  privi- 
lege of  the  writ  was  denied,  the  prisoner  being  surren- 
dered to  the  British  consul.  Such  a  surrender  was 
clearly  illegal  and  created  great  popular  excitement. 

Of  the  extradition  treaties  now  in  force,  thirty-three 
in  number,  twenty  contain  the  provision  that  political 
oifences  are  not  extraditable,  though  none  of  them  con- 
tain a  definition  of  the  term.  Nineteen  contain  a  pro- 
vision that  citizens  of  the  state  upon  which  the  de- 
mand is  made  are  not  to  be  surrendered ;  as  citizens 
are  not  excepted  in  the  other  treaties,  the  presumption 
is  that  they  would  be  surrendered  upon  due  applica- 
tion. Twenty-two  of  them  contain  a  clause  author- 
izing the  surrendering  state  to  try  and  punish  offences 
against  its  own  laws  before  giving  effect  to  the  extra- 
dition process.  In  all  of  them  it  is  expressly  stipu- 
lated that  the  sufficiency  of  evidence  as  to  the  com- 
mission of  the  crime  for  which  extradition  is  demand- 
ed shall  be  determined  by  the  laws  of  the  state  in 
which  the  criminal  has  taken  refuge. 

5.  Interstate  Extradition. — The  subject  of  interstate 

extradition  in  the  United  States  is  regulated  by  the 

Federal  Constitution,  which  provides  that  "  a  person 

charged  in  any  State  with  treason,  felony,  or  other 

9 


130  OUTLINES  OF  INTERNATIONAL  LAW. 

crime,  who  shall  flee  from  justice,  and  be  found  in 
another  state,  shall,  on  demand  of  the  executive  au- 
thority of  the  state  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  state  having  jurisdiction  of 
the  crime." '  This  provision  covers  only  cases  arising 
within  the  territorial  limits  of  the  United  States.  The 
power  to  surrender  fugitives,  who,  having  commit- 
ted offences  within  the  jurisdiction  of  &  foreign  state, 
have  fled  to  one  of  the  United  States  for  shelter,  be- 
longs, under  the  Constitution,  exclusively  to  the  United 
States.2  The  practice  of  extradition  between  the  states 
of  the  Federal  Union  is  carried  on  with  nearly  as  much 
strictness  as  is  that  between  foreign  nations,  and  in 
accordance  with  similar  rules.  It  has  been  decided, 
however,  by  the  Supreme  Court  of  the  United  States 
that  the  term  "  other  crime,"  as  used  in  the  extradi- 
tion clause  of  the  Federal  Constitution,  refers  to  the 
definition  of  the  offense  according  to  the  law  of  the 
state  in  which  the  crime  was  committed.  In  this  re- 
spect the  rule  of  interstate  extradition  is  opposed  to 
the  international  rule  on  the  same  subject.  This  should 
be  the  case,  as  the  systems  of  criminal  law,  of  proof, 
procedure,  and  punishment,  in  the  several  states  of  the 
Union,  are  so  nearly  the  same  as  to  make  the  observ- 
ance of  the  international  rule  unnecessary. 

The  same  tribunal  holds  that  "where  demand  is 
made  in  due  form,  it  is  the  duty  of  the  executive  on 
whom  the  demand  is  made  to  respond  to  it,  and  he 
has  no  moral  right  to  refuse.  Nevertheless,  if  he  does 
refuse,  no  power  has  been  conferred  on  the  Federal 
courts  to  compel  obedience,  and  the  governors  of  states 

1  Constitution  of  the  United  States,  §  2,  art.  4. 
8  Holmes  vs.  Jennison,  Peters,  vol.  xiv.,  p.  540. 


EXTRADITION. 

have  often  refused  compliance  -with  the  demand,  when, 
in  their  opinion,  substantial  justice  did  not  require  it.1 

References. — For  the  latest  and  most  valuable  discussion  of  the 
important  subject  of  Extradition,  both  international  and  inter- 
state, see  "Moore  on  Extradition,"  by  J.  B.  Moore,  formerly  of  the 
Department  of  State,  but  now  professor  of  International  Law  in 
Columbia  College ;  see  also  Spear's  "  Law  of  Extradition  ;"  Hall, 
"International  Law,"  p.  48;  Halleck,  vol.  L,  chap,  vii.,  §§28-35; 
Boyd's  Wheaton,  pp.  156-162,  and  pp.  645-650;  Amos,  "Science 
of  Law,"  p.  268 ;  Kliiber,  §§  60-66  ;  G.  F.  De  Martens,  §  99-102 ; 
Heffter,  §§  63,  63a ;  Bar,  p.  17,  and  pp.  623-737,  and  Teichmann, 
"  Les  Dalits  Politiques,  le  Regicide  et  1'Extradition,"  in  vol.  xi.  of 
the  "  Revue  de  Droit  International, "  pp.  475-524. 

1  Cooley,  "Constitutional  Law," p.  191  ;  Kentucky  vs.  Dennison, 
Howard,  vol.  xxiv.,  p.  66. 


CHAPTER  VI. 

PEIVATE   INTERNATIONAL   LAW. 

1.  Relations  of  States  and  Individuals  at  Interna- 
tional Law. — It  has  been  seen  that  "  the  relations  of 
states  to  one  another  are  twofold  in  character.     Either 
the  governments  of  the  different  states  have  relations 
to  each  other,  or  the  individual  citizens  of  the  differ- 
ent states  have  relations  to  each  other.     The  first  class 
of  relations  give  occasion  to  what  is  called  Public  In- 
ternational Law,  and  the  latter  to  what  is  sometimes 
called,  with  less  precision,  Private  International  Law." ' 

2.  Definition.  —  That  branch  of  International  Law 
which  treats  of  the  relations  of  states  with  the  citizens 
or  subjects  of  other  states  is  called  Private  Interna- 
tional Law  •   or,  as  it  is  a  question  of  determining 
whether  the  courts  of  a  state  are  to  apply  their  own 
municipal  law,  or  that  of  another  state,  in  the  decision 
of  a  given  cause,  it  is  sometimes  called  the  Conflict  of 
Laws. 

The  Practice  Based  upon  Comity  or  Consent. — 
From  the  definition  of  sovereignty  it  has  been  seen 
that  "  the  jurisdiction  of  a  nation  within  its  own  terri- 
tory is  necessarily  exclusive  and  absolute.  It  is  sus- 
ceptible of  no  limitations  not  imposed  by  itself.  Any 
restriction  upon  it  deriving  validity  from  any  exter- 
nal source  would  imply  a  diminution  of  the  sovereignty 

1  Amos,  "Science  of  Law,"  p.  25. 


PRIVATE  INTERNATIONAL  LAW.  ^33 

to  the  extent  of  the  restriction,  and  an  investment  of 
that  sovereignty  to  the  same  extent  in  that  power 
which  could  impose  such  restriction."1  The  extent, 
therefore,  to  Avhich  the  courts  of  one  state  may  apply 
the  laws  of  another  in  the  decision  of  cases,  as  it  is 
based  upon  comity  or  consent,  must  be  determined  by 
the  municipal  law  of  the  state  in  which  the  court  sits. 
It  may  be  prohibited  altogether,  or  may  be  permitted 
subject  to  such  restrictions  as  that  state  may  see  fit  to 
impose  in  accordance  with  its  views  of  justice  or  ex- 
pediency. 

Origin  of  the  Practice. — The  rules  of  Private  Inter- 
national Law  "come  into  being  through  the  moral 
claim  that  is  presented  either  by  persons  who,  not  be- 
ing citizens  of  a  given  country,  come  into  the  courts 
of  justice  of  that  country  while  sojourning  there  to 
have  rights  recognized  and  protected  which  they  have 
acquired  in  their  own  country;  or,  by  those  who,  be- 
ing citizens  of  one  country,  but  having  acquired  rights 
while  sojourning  in  other  countries,  come  into  the 
courts  of  their  own  country  to  have  those  rights  recog- 
nized and  protected. 

"  On  every  occasion  for  inventing  rules  applicable  to 
these  cases  the  question  is  presented  whether  the  courts 
of  justice  of  a  country  shall  recognize  rights  acquired, 
either  by  their  own  citizens  or  by  foreigners,  in  other 
countries ;  or,  in  other  words,  whether  the  laws  of  oth- 
er countries,  giving  validity  to  those  rights,  shall  or 
shall  not  be  held  to  be  effectual  in  the  courts  of  justice 
which  are  invited  to  interfere.  The  cases  are  generally 
further  complicated  by  the  nature  of  the  processes  and 

1  Case  of  the  Exchange,  Cranch,  vol.  vii.,  p.  116. 


134:  OUTLINES  OF  INTERNATIONAL  LAW. 

transactions  out  of  which  the  asserted  rights  spring. 
Part  of  the  transactions  may  have  taken  place  in  one 
country  and  part  in  another,  and  the  remedy  may  be 
sought  for  in  a  third.  Or,  the  person  seeking  the  rem- 
edy, or  against  whom  the  remedy  is  sought,  may  be 
the  citizen  of  one  country,  have  his  permanent  resi- 
dence or  domicile  in  another  country,  and  be  tempora- 
rily sojourning  in  the  country  in  which  the  remedy  is 
sought. 

"  It  is  obvious,  from  a  mere  enumeration  and  descrip- 
tion of  the  cases  which  give  rise  to  rules,  that  the  pur- 
pose of  the  existence  of  these  rules  is  always  the  facil- 
itation of  intercourse  between  the  citizens  of  different 
states,  and  the  prevention  of  practical  injustice.  These 
objects  must  be  served  in  the  highest  degree,  if  the 
greatest  possible  uniformity  of  principle  obtain,  in  the 
courts  of  all  nations,  in  creating  and  applying  the  rules. 
In  this  way  reasonable  expectations  are  likely  to  be 
best  satisfied,  and  fraudulent  invasions  of  the  law  of 
any  particular  country  are  likely  to  be  most  effectually 
prevented.  It  happens,  however,  that,  owing  to  the 
political  jealousies  that  have  hitherto  kept  apart  the 
most  considerable  nations  of  Europe,  and  to  the  fool- 
ish prejudice  with  which  individual  nations  have  fos- 
tered principles  of  law  familiar  in  their  own  courts, 
however  alien  to  the  practice  of  all  other  countries,  there 
have  hitherto  been  made  only  very  imperfect  attempts 
at  uniformity,  either  of  principle  or  practice,  in  this 
respect.  It  is  probable  that  an  increasingly  clear  ap- 
prehension of  the  logical  relations  of  the  different 
branches  of  law  touching  ownership,  contract,  family 
life,  or  crime,  will  produce  the  effect  of  assimilating 
the  substance,  as  well  as  the  form,  of  the  rules  of  law 


PRIVATE  INTERNATIONAL  LAW.  135 

forming  the  so-called  Private  International  Law  of  dif- 
ferent countries." ' 

As  the  practice  of  Private  International  Law  is 
based  upon  the  comity  of  nations,  it  is  obvious  that 
the  modern  science  cannot,  in  its  origin,  antedate  the 
recognition  of  comity  as  a  general  international  ob- 
ligation. The  remote  origin  of  the  practice,  however, 
is  much  more  ancient,  and  can  unquestionably  be 
traced  to  the  Jus  Gentium  of  the  Romans,  which  was, 
in  substance,  a  formal  recognition  of  the  principles  in- 
volved in  Private  International  Law  by  the  greatest 
state  that  has  ever  existed.  The  Roman  Civil  Law 
applied  to  Roman  citizens  alone  ;  the  Jus  Gentium,  or 
Law  of  Nations,  was  made  up  of  those  principles  of 
law  which  were  common  to  all  the  nations  of  which 
they  had  any  authentic  knowledge.  This  system  was 
administered  by  the  Roman  courts  during  the  exist- 
ence of  the  empire,  and  was  revived,  by  Grotius,  more 
than  a  thousand  years  after  the  downfall  of  the  state 
in  which  it  had  originated,  for  the  purpose  of  furnish- 
ing a  logical  and  legal  basis  for  the  new  science  of  In- 
ternational Law. 

The  rules  of  domicile,  which  lie  at  the  base  of  the 
subject,  were  the  first  to  receive  attention,  and  to  be 
made  the  subject  of  judicial  decision.  This  was  espe- 
cially true  of  their  application  by  prize-courts  in  ascer- 
taining the  domicile  of  owners  of  captured  vessels,  with 
a  view  to  determining  the  nationality,  and  so  the  lia- 
bility to  capture  and  condemnation,  of  their  property. 
Aside  from  this,  however,  but  little  attention  was  paid 
to  the  subject,  as  a  matter  of  public  law,  until  after  the 

1  Amos,  "  Science  of  Law,"  pp.  26,  27. 


136  OUTLINES  OF  INTERNATIONAL  LAW. 

middle  of  the  seventeenth  century,  when  the  rules  re- 
garding the  treatment  of  aliens  began  to  be  relaxed  in 
severity,  and  the  alien  class  began  to  demand  protec- 
tion in  their  personal  and  property  rights.  Its  prog- 
ress has  not  been  rapid  at  any  time,  though  an  increased 
interest  in  it  has  been  manifested  since  the  beginning 
of  the  present  century,  and  all  states  that  are  parties 
to  International  Law  now  recognize  its  rules,  and,  to 
a  greater  or  less  extent,  permit  their  courts  to  apply 
them  in  the  decision  of  cases  arising  within  their  ju- 
risdiction. Their  practice  is  far  from  uniform,  how- 
ever, some  states  being  slow  to  recognize  their  binding 
force,  while  others  constantly  seek  to  extend  their  field 
of  operation,  at  times  going  so  far  as  to  negotiate 
treaties  for  that  purpose.  The  tendency  of  all  modern 
states  is  in  the  same  direction,  though  some  move  more 
rapidly  than  others. 

3.  Subjects  Treated  of  in  Private  International  Law. 
— The  rules  of  Private  International  Law  have  chiefly 
to  do — 

(1.)  With  the  legal  status  of  aliens,  and  with  their 
capacity  to  do  certain  acts  in  a  state,  not  in  accordance 
with  its  municipal  law,  but  in  accordance  with  the  mu- 
nicipal law  of  another  state. 

(2.)  With  questions  arising  as  to  the  validity  of  for- 
eign marriages  or  divorces. 

(3.)  With  similar  questions  arising  as  to  the  validity 
or  binding  force  of  contracts  or  agreements. 

(4.)  With  questions  connected  with  the  ownership, 
or  transfer,  of  land  and  goods. 

(5.)  With  foreign  judgments  and  bankruptcies.1 

1  Amos,  "  Science  of  Law,"  p.  319. 


PRIVATE  INTERNATIONAL  LAW.  137 

Limitations  upon  the  Practice  of  Private  Interna- 
tional Law. — The  courts  of  a  state,  in  applying  the 
rules  of  Private  International  Law  in  any  one  of  the 
foregoing  cases,  cannot  give  effect  to,  or  apply,  a  for- 
eign law  which  is 'repugnant  to  the  municipal  law,  or 
moral  standards,  or  public  policy  of  their  own  state. 
In  accordance  with  this  principle  the  following  excep- 
tions are  stated  by  Wharton,  in  his  "  Conflict  of  Laws :" ' 

(1.)  Distinctions  of  rank,  or  caste,  have  no  extra- 
territorial effect. 

(2.)  Laws  destructive  of  capacity  are  disfavored  in- 
ternationally ;  those  protective  of  capacity  are  favored. 
To  the  former  class  would  belong  laws  recognizing 
slavery,  or  imposing  disabilities  on  account  of  relig- 
ious belief. 

(3.)  Property,  whether  real  or  personal,  is  subject  to 
the  lex  rei  sitce. 

(4.)  In  all  matters  relating  to  a  decedent's  estate, 
except  as  to  realty,  the  law  of  the  last  domicile  of  the 
decedent  is  to  prevail. 

(5.)  Contracts,  as  a  general  rule,  are  to  be  governed 
by  the  law  of  the  place  of  performance.2 

(6.)  Process,  as  a  general  rule,  is  to  be  governed  by 
the  lex  for  i. 

(7.)  Persons  are,  in  general,  subject  to  the  law  of 
their  domicile ;  "  but,  when  visiting  other  lands,  they 
can  only  claim  to  be  invested  with  the  law  of  such 
domicile  to  the  extent  which  is  consistent  with  the 
common  law  of  Christendom,  which  is  the  foundation 
of  Private  International  Law."  Hence  "a  polyga- 
mous or  incestuous  marriage,  even  though  sanctioned 

1  Wharton,  ' '  Conflict  of  Laws,"  §  19.  a  Ibid. 


138  OUTLINES  OF  INTERNATIONAL  LAW. 

by  a  foreign  state,  and  contracted  within  its  borders, 
has  no  exterritorial  force.  Foreign  judgments  of  di- 
vorce, to  be  respected,  must  be  rendered  by  courts 
having  jurisdiction  according  to  the  judgments  of  Pri- 
vate International  Law.  Foreign  incapacity,  arising 
from  minority  or  subjection  to  tutelage,  will  only  be 
recognized  when  there  is  something  in  the  person  so 
subjected  to  put  persons  dealing  with  him  on  inquiry."  ' 

Effect  of  Foreign  Judgments. — A  foreign  judgment 
is  one  obtained  in  the  courts  of  a  foreign  state,  the 
recognition  and  enforcement  of  which  is  asked  in  the 
courts  of  the  state  in  which  the  defendant  is  resident, 
or  subject  to  legal  process.  The  great  majority  of 
states  give  effect  to  a  foreign  judgment  in  all  cases  in 
which  the  following  conditions  have  been  fulfilled : 

(1.)  The  tribunal  which  pronounced  the  judgment 
must  have  been  competent,  according  to  the  law  of 
the  state  to  which  it  belonged,  to  decide  upon  the 
matter  adjudicated  upon. 

(2.)  The  jurisdiction  must  have  been  complete  both 
as  to  subject-matter  and  over  the  parties  to  the  suit. 

(3.)  The  foreigner  who  was  a  party  must  have  been 
fairly  heard  before  the  tribunal,  according  to  the  laws 
of  the  state,  and  on  an  equality,  in  every  respect,  in- 
cluding the  right  of  appeal,  with  a  native  subject. 

(4.)  The  tribunal  must  have  decided  upon  the  very 
subject-matter  which  it  is  attempted  to  litigate  upon, 
and  the  decision  must  have  been  final,  or  made  by 
the  court  of  last  resort. 

Condition  of  Reciprocity.  —  To  these  conditions 
some  nations  add  another,  that  of  reciprocity.  If  these 

1  Wliarton,  "  Conflict  of  Laws,"  §  19. 


PRIVATE  INTERNATIONAL  LAW.  139 

conditions  are  fulfilled  they  will  constitute  a  valid 
ground  upon  which,  to  base  a  plea  in  bar  of  a  second 
litigation,  and,  if  properly  authenticated,  the  foreign 
judgment  will  be  executed  by  them  as  if  it  were  their 
own.1 

Foreign  Judgments,  why  Produced  before  the  Courts 
of  a  State. — Whenever  a  foreign  judgment  is  brought 
to  the  judicial  notice  of  the  courts  of  a  state  it  is  with 
a  view  of  obtaining  one  of  two  results : 

(1.)  "  It  may  be  pleaded  in  bar. 

(2.)  "  It  may  be  given  effect  to,  and  executed  in  the 
same  manner  as  a  domestic  judgment." a 

Conditions  under  which  they  are  Given  Effect. — 
In  accordance  with  the  practice  of  most  states  of 
Christendom,  foreign  judgments  are  permitted  to  have 
effect  only  in  the  following  cases : 

(1.)  With  the  consent  of  the  state  in  which  execu- 
tion is  desired. 

(2.)  By  the  authority  and  order  of  its  tribunals. 

(3.)  When  it  contains  no  provisions  or  order  contra- 
ry to  the  public  morals  or  policy  of  the  state  in  which 
execution  of  it  is  sought.3 

Practice  of  States  in  the  Matter  of  Foreign  Judg- 
ments.— Although  there  is  considerable  variance  in  the 
policy  of  states  as  to  the  effect  given  in  each  to  for- 
eign judgments,  most  of  them  are  susceptible  of  clas- 
sification under  one  of  three  heads : 

(1.)  "  Those  which  recognize  the  rule  of  reciprocity. 

(2.)  "  Those  which  refuse  to  recognize  foreign  judg- 
ments. 

1  Phillimore,  vol.  iv.,  pp.  729,  730. 

*  Ibid.,  p.  729;  De  Martens,  liv.  iii.,  §  94. 

1  Phillimore,  vol.  iv.,  p.  728. 


140  OUTLINES  OF  INTERNATIONAL  LAW. 

(3.)  "  Those,  like  England  and  the  United  States, 
which  recognize  them  even  without  reciprocity." ' 

References. — The  admirable  treatises  of  Wharton  and  Story  upon 
the  subject  of  "Private  International  Law,"  or  the  "Conflict  of 
Laws,"  both  works  of  the  highest  authority,  practically  exhaust 
the  subject  in  all  its  departments.  Bar's  "International  Law"  is 
a  standard  German  work  upon  the  subject,  and  may  now  be  ob- 
tained in  an  English  translation.  Fcelix,  "Traite  de  Droit  In- 
ternational Prive"  "  is  a  French  work  of  high  authority.  The  fourth 
volume  of  Phillimore  is  devoted  to  the  subject  of  Domicile  and 
Private  International  Law.  For  briefer  and  less  elaborate  ac- 
counts, see  Boyd's  Wheaton,  §§  78-92;  Halleck,  vol.  i.,  chap.  vii. ; 
and  Brocher's  "Theorie  du  Droit  International  Privfi,"  in  vols.  iv., 
v.,  of  the  Revue  de  Droit  International. 

1  PMllimore,  vol.  iv.,  pp.  731,  733. 


CHAPTER  YIL 

THE   EIGHT   OF   LEGATION. 

1.  Origin  of  the  Right. — The  right  of  legation  is  one  of 
the  oldest,  as  it  is  one  of  the  most  generally  sanctioned 
of  international  usages.  It  has  existed  from  the  ear- 
liest times,  and  among  all  peoples  of  whom  we  have 
any  authentic  knowledge.  It  is  recognized  and  prac- 
ticed to  some  extent  even  by  barbarous  nations  in 
their  occasional  intercourse  with  each  other. 

,  As  nations  cannot  treat  directly  with  each  other,  it 
follows  that  intercourse  between  them  must  be  carried 
on  by  means  of  agents  or  intermediaries ;  these  agents 
are  called  ambassadors. 

The  practice  of  maintaining  public  ambassadors  at 
foreign  courts,  though  recognized  to  some  extent  in 
Europe  at  an  earlier  date,  did  not  become  general  un- 
til about  the  middle  of  the  seventeenth  century.  The 
treaty  of  Westphalia,  which  was  concluded  in  1648, 
marked  an  important  epoch  in  European  history.  As 
an  immediate  result  of  its  execution  the  influence  of 
the  Roman  Church  in  secular  matters  was  largely  re- 
duced in  importance,  and  the  principle  of  balance  of 
power  was,  for  the  first  time,  generally  sanctioned  and 
specially  guaranteed.  As  a  consequence  the  foreign 
relations  of  the  different  European  states  rapidly  in- 
creased in  volume  and  intricacy,  and  the  necessity  of 
establishing  permanent  legations  was  generally  recog- 
nized and  acted  upon.  The  profession  of  diplomacy 


142  OUTLINES  OF  INTERNATIONAL  LAW. 

soon  became  the  most  important  one  in  which  an  in- 
dividual could  engage,  and  the  departments  of  foreign 
affairs  were  regarded  as  the  most  important  branches 
of  governmental  service,  demanding  in  their  adminis- 
tration ministers  of  the  highest  ability  and  the  widest 
experience.  The  position  assumed  by  the  profession 
has  been  constantly  maintained,  and  the  states  of  Eu- 
rope and  America  now  deem  it  a  matter  of  the  first 
consequence  to  be  ably  represented,  not  only  near  the 
courts  of  the  Christian  states,  but  also  at  the  capitals 
of  those  Eastern  nations  which,  as  yet,  but  imperfectly 
recognize  the  sanctions  of  International  Law. 

The  Right  of  Legation. — The  right  of  sending  and 
receiving  ambassadors  is  one  of  the  essential  attributes 
of  a  sovereign  state.  The  obligation  to  do  so  is  less 
strong,  and  is  not  generally  regarded  as  a  matter  of 
strict  right.  A  nation,  however,  which  refuses,  with- 
out good  reason,  to  receive  a  minister  from  a  foreign 
power  exposes  itself  to  retorsion ;  and  a  state  would 
run  counter  to  the  tendencies  of  modern  civilization 
which  rejected,  or  refused  to  receive,  communications 
from  a  state  with  which  it  was  at  peace.1 

The  power  of  sending  and  receiving  ambassadors 
belongs  also  to  dependent  states,  unless  its  exercise  is 
expressly  forbidden  by  the  states  upon  which  they  are 
dependent.  In  the  case  of  confederacies  the  right  be- 
longs to  each  of  the  component  states,  unless  it  has 
been  expressly  surrendered  by  them  in  the  treaty  of 
confederation. 

A  state,  though  willing  to  receive  an  ambassador 
from  another,  may,  for  good  reason,  decline  to  receive 

'  Heffter,  p.  377. 


THE  RIGHT  OF  LEGATION.  143 

a  particular  person  in  that  capacity.  It  may  thus  de- 
cline to  receive  one  of  its  own  subjects,  or  a  former 
subject  who  had  been  exiled  or  who  had  gone  into 
voluntary  exile,  or  a  person  of  doubtful  or  immoral 
character,  or  one  who  had  been  engaged  in  a  conspira- 
cy or  agitation  directed  against  the  government  to 
which  he  is  accredited  as  an  ambassador.  "  A  state 
may  also  decline  to  receive  ministers  whose  powers 
are  incompatible  with  its  constitution  or  public  policy. 
For  this  reason  no  state  is  obliged  to  receive  as  minis- 
ter the  legates  or  nuncios  of  the  pope.  Their  powers 
are  conferred,  either  expressly  or  tacitly,  by  ecclesias- 
tical laws,  and  an  attempt  to  enforce  them  may  bring 
the  papal  representative  into  collision  with  the  sover- 
eign authority  of  the  state  upon  some  question  of  a 
religious  character." ' 

It  has  already  been  explained  that  the  government 
of  a  state  is  the  organ  through  which  it  communi- 
cates with  other  powers.  In  such  intercourse  with 
other  states  a  government  may  communicate  direct- 
ly, through  its  ministry  of  foreign  affairs,  or  through 
ambassadors  selected  by  the  proper  governmental 
authority  in  accordance  with  its  constitution  and 
laws. 

2.  Classification  of  Diplomatic  Agents.  —  Heffter 
makes  the  following  classification  of  these  agents  of 
intercourse. 

(«.)  Public  ministers.  These  are  clothed  with  a  pub- 
lic and  official  character,  and  are  sent  by  the  sovereign 
authority  of  <i  state  to  a  foreign  government,  as  its 
general  diplomatic  representatives,  or  to  undertake 

1  Heffter,  p.  377. 


144  OUTLINES  OF  INTERNATIONAL  LAW. 

special  negotiations.     They  may  have  either  a  perma- 
nent or  temporary  character. 

(J.)  Diplomatic  agents,  charged  with  similar  duties, 
but  without  public  or  official  character. 

(<?.)  Commissioners,  appointed  for  special  purposes, 
as  to  locate  and  mark  boundaries,  to  adjust  interna- 
tional differences,  or  to  carry  into  effect  special  clauses 
of  treaties.  The  members  of  this  class  do  not  com- 
municate directly  either  with  a  foreign  sovereign  or 
with  his  ministers.1 

8.  Itaiik  of  Ambassadors. — The  absence  of  a  well-de- 
fined rule  by  which  to  determine  questions  arising  as 
to  the  powers  and  dignities  of  the  different  classes  of 
diplomatic  agents  gave  rise  to  great  confusion,  especial- 
ly at  the  beginning  of  the  present  century.  To  remedy 
this  the  representatives  of  the  European  powers  as- 
sembled in  Congress  at  Vienna,  in  1815,  agreed  upon 
a  classification  of  public  ministers,  and  recommended 
the  preparation  and  adoption,  in  each  state,  of  rules 
to  regulate  their  precedence.  The  arrangement  pro- 
posed at  Vienna,2  as  modified  by  the  action  of  the 
Congress  of  Aix-la-Chapelle/  in  1818,  has  received  such 
general  sanction  as  to  entitle  it  to  consideration  as 
a  rule  of  International  Law.  In  accordance  with  its 
provisions  diplomatic  agents  are  now  arranged  into 
four  classes : 

,    («.)  Ambassadors,  ordinary  and  extraordinary,  leg- 
ates and  nuncios. 

(5.)  Envoys,  ministers,  or  other  diplomatic  agents 
accredited  to  sovereigns. 

(c.)  Ministers  resident,  accredited  to  sovereigns. 

'  Heff ter,  p.  378.  a  Ibid.  3  Ibid. 


THE  RIGHT  OF  LEGATION.  145 

(d.)  Charges  (T Affaires,  and  other  diplomatic  agents 
accredited  to  ministers  of  foreign  affairs  (whether 
bearing  the  title  of  minister  or  not),  and  consuls 
charged  with  diplomatic  duties.1 

Ambassadors  of  the  first  class  are  alone  clothed  with 
the  representative  character;  they  have  special  pre- 
rogatives, and  are  entitled  to  special  honors,  as  they 
represent  the  sovereign  in  his  personal  character. 
Members  of  the  other  classes  represent  his  affairs  only. 
In  general  the  immunities  to  which  ministers  are  en- 
titled depend  upon  their  letters  of  credence.  Those 
accredited  to  sovereigns  are  entitled  to  the  immunities 
of  ambassadors,  those  accredited  to  ministers  of  for- 
eign affairs  are  not. 

4.  Titles  of  Ambassadors.  —  The  titles  of  ambassa- 
dors are  regulated  by  the  municipal  laws  of  the  states 
which  they  represent.  The  terms  ordinary  and  ex- 
traordinary at  first  determined  the  character  of  the 
diplomatic  employment  of  the  ministers  to  whom  they 
were  applied.  They  have  now  no  special  meaning. 
Legates  and  nuncios  are  the  representatives  of  the 
pope  at  foreign  courts.  Legates  have  the  rank  of 
cardinal,  and  represent,  to  a  certain  extent,  his  spirit- 
ual as  well  as  his  temporal  authority.  ^Nuncios  repre- 
sent him  in  the  latter  capacity  only.  In  determining 
the  rank  and  titles  of  ministers  sent  to  foreign  courts, 
the  principle  of  reciprocity  prevails,  and  a  state  sends 
to  another  a  representative  of  the  same  class  that  it 
receives.  Several  ministers  may  be  maintained  at  the 
same  court,  and  a  single  person  may  represent  a  state 
at  several  courts. 


1  Heffter,  p.  388. 
10 


146  OUTLINES  OF  INTERNATIONAL  LAW. 

5.  Manner  of  Sending  and  Receiving  Ambassadors. 
— To  enable  a  minister  to  be  received  in  that  charac- 
ter, he  is  provided  by  the  sovereign  or  other  chief  ex- 
ecutive authority  of  his  own  state  with  two  important 
papers,  called  his  Letter  of  Credence  and  Full  Power. 
The  Letter  of  Credence  is  addressed  to  the  sovereign 
to  wThom  he  is  accredited.  It  contains  his  name  and 
title,  confers  upon  him  the  diplomatic  character,  and 
serves  to  identify  him  as  a  public  minister,  but  does 
not  authorize  him  to  enter  upon  any  particular  nego- 
tiation. The  Full  Power  authorizes  him  to  act  as  the 
general  diplomatic  representative  of  his  government 
at  the  court  to  which  he  is  accredited.  It  describes 
the  limits  of  his  authority  to  negotiate,  if  such  there 
be,  and  upon  it  the  validity  of  his  acts  as  a  minister 
largely  depends.  Ambassadors  who  represent  states 
at  Congresses  and  Conferences,  or  as  members  of  In- 
ternational Courts,  or  Boards  of  Arbitration,  are  not 
usually  provided  with  Letters  of  Credence.  They  bear 
Full  Powers,  under  the  authority  of  which  they  act, 
and  copies  of  them  are  exchanged  among  the  differ- 
ent members  of  the  board  or  conference.1 

Reception  of  Ambassadors. — An  ambassador  or  min- 
ister accredited  to  a  sovereign,  upon  arriving  at  his 
station,  forwards  a  copy  of  his  Letter  of  Credence  to 
the  Minister  of  Foreign  Affairs,  and  requests  an  audi- 
ence with  the  sovereign.  At  this  audience,  which  may 
be  either  public  or  private,  his  Letter  of  Credence  is 
presented,  and  complimentary  speeches  are  usually  ex- 
changed. He  may  then  enter  upon  the  performance 
of  his  duties. 

JDe  Martens,  vol.  i.,  pp.  84,  86. 


THE  RIGHT  OF  LEGATION. 

6.  Duties  of  Ambassadors. — The  duties  of  a  public 
minister  are  not  susceptible  of  exact  description.    Some 
of  them  are  regulated  by  International  Law,  and  some 
by  the  municipal  law  of  the  ambassador's  state.   They 
depend  upon  the  importance  of  the  power  to  which 
he  is  accredited,  upon  the  amount  of  intercourse,  com- 
mercial and  otherwise,  existing  between  it  and  the 
state  which  he  represents,  and,  to  some  extent,  upon 
the  difference  in  their  systems  of  government.     He 
is  expected  to  keep  his  government  informed  upon  all 
questions  of  general  interest,  and  to  advise  it  of  any 
change  in  the  government,  constitution,  or  state  pol- 
icy of  the  country  in  which  he  is  resident.    It  is  also 
his  duty  to  make  proper  representations  in  behalf  of 
subjects  of  his  own  state  who  may  stand  in  need  of 
protection,  to  secure  a  remedy  for  injuries  which  they 
may  have  received,  or,  in  case  they  exceed  his  jurisdic- 
tion, to  inform  his  government  fully  of  the  facts  in 
each  case  in  order  that  proper  measures  of  redress 
may  be  taken.     In  general  he  represents  the  interests 
of  his  state,  and  those  of  its  individual  subjects,  in 
the  country  to  which  he  is  accredited.     That  he  may 
do  so  effectively  at  all  times,  and  under  all  circum- 
stances, he  is  bound  by  every  consideration  of  honor 
and  duty  to  scrupulously  abstain  from  all  interference 
in  the  internal  affairs  of  the  state  to  which  he  is  ac- 
credited. 

7.  Diplomatic  Language. — Every  state  has  a  right 
to  employ  its  own  language  in  its  communications  to 
other  powers,  and  must  recognize  a  corresponding 
right,  on  the  part  of  other  states,  to  a  similar  use  in  all 
communications  addressed  to  itself.    Until  the  begin- 
ning of  the  eighteenth  century  Latin  was  in  general 


148  OUTLINES  OF  INTERNATIONAL  LAW. 

use  as  a  convenient  neutral  language.  The  treaties  of 
Mmeguen,  Byswick,  and  Utrecht,  and  the  Quadruple 
Alliance,  concluded  at  London  in  1T88,1  were  drawn 
up  in  Latin.  The  official  acts  of  the  Holy  See  are 
still  written  in  that  language.  French,  however,  has 
gradually  displaced  Latin  as  the  diplomatic  language, 
and,  to  a  great  extent,  still  retains  that  character.  The 
treaties  of  Vienna,  in  1815,  those  of  1833,  concerning 
the  separation  of  Belgium  from  Holland,  and  the  treaty 
of  Paris,  in  1856,  were  drawn  up  in  French. 

8.  The  Functions  of  Ambassadors,  how  Suspended  and 
Terminated.  —  The  functions  of  an  ambassador,  and 
consequently  his  official  character,  may  be  suspend- 
ed, and  may,  or  may  not,  be  terminated — 

(a.}  As  a  result  of  some  difference  or  misunderstand- 
ing between  the  two  powers,  not  resulting  in  war. 

(5.)  Upon  the  occurrence  of  important  political 
events,  which  render  the  continuance  of  his  mission 
improbable ;  as  a  sudden  or  violent  change  in  the  con- 
stitution or  form  of  government,  in  either  state.  Such 
a  suspension  continues  until  it  is  removed,  by  proper 
authority,  in  the  state  in  which  it  originated. 

A  mission  may  be  terminated — 

(«.)  By  the  death,  or  by  the  voluntary  or  constrained 
abdication  of  one  or  both  sovereigns.  This,  however, 
only  in  case  the  ambassador  represents  the  sovereign 
in  his  personal  capacity.2 

(£.)  By  the  withdrawal,  or  cancellation,  of  his  Letters 
of  Credence  and  Full  Power. 

(<?.)  By  his  recall  at  the  outbreak  of  war ;  or  upon 
the  completion  of  the  duty  which  he  was  appointed  to 

1  Heffter,  p.  433.  a  Ibid.,  p.  414. 


THE  RIGHT  OF  LEGATION. 

perform,  the  expiration  of  his  term  of  office,  or  upon 
his  promotion  or  removal  to  another  sphere  of  duty. 

(d.)  By  his  removal,  which  may  be  voluntary,  or 
forced  by  the  government  to  which  he  is  sent. 

(<?.)  By  death.1 

When  the  functions  of  an  ambassador  cease  for  any 
cause  his  departure  is  attended  by  formalities  sim- 
ilar to  those  observed  at  his  reception.  He  requests 
an  audience  with  the  sovereign,  at  which  he  presents 
his  letters  of  recall.  If  normal  relations  exist  between 
the  two  governments,  formal  expressions  of  regret  are 
exchanged  at  this  interview.  In  strictness  his  functions 
and  privileges  cease  when  his  letter  of  recall  has  been 
presented.  Through  courtesy,  however,  the  immuni- 
ties which  he  has  enjoyed  during  his  period  of  resi- 
dence are  extended  to  him  until  he  passes  the  frontier 
of  the  state  on  his  homeward  journey. 

9.  The  Privileges  and  Immunities  of  Ambassadors. 
— To  the  successful  and  efficient  performance  of  an 
ambassador's  duties  the  most  complete  personal  inde- 
pendence and  freedom  of  action  are  necessary.  This 
immunity  lies  at  the  foundation  of  the  system,  and 
has  been  most  jealously  guarded  and  preserved  since 
the  beginning  of  modern  diplomacy.  It  was  recog- 
nized by  the  nations  of  antiquity,  and  is  insisted  upon 
as  a  necessary  preliminary  to  intercourse  with  those 
Eastern  countries  whose  standards  of  civilization  differ 
so  widely  from  our  own.  It  is  illustrated  by  the  swift- 
ness with  which  nations  have  always  resented  offences 
against  the  persons  of  their  ministers  and  diplomatic 
agents. 

1  De  Martens,  vol.  ii.,  p.  160. 


150  OUTLINES  OF  INTERNATIONAL  LAW. 

10.  The  Principle  or  fiction  of  Exterritoriality. — - 
From  the  fact  of  the  inviolability  of  an  ambassador's 
person,  ihe  fiction  of  exterritoriality  lias  been  deduced 
to  account  for  and  explain  the  various  exemptions 
which  public  ministers  enjoy  in  foreign  countries. 
This  principle  has  been  denned,  and  its  limitations 
have  been  pointed  out,  elsewhere. 

This  immunity  is  both  personal  and  territorial.  Per- 
sonal in  that  it  involves  an  exemption  of  his  person 
from  the  civil  and  criminal  jurisdiction  of  the  state  in 
which  he  is  resident ;  territorial  in  that  his  residence 
or  hotel  is  presumed  to  be  a  part  of  the  territory  of 
the  state  which  he  represents.  In  strictness  his  privi- 
leges and  immunities  become  effective  when  he  enters 
upon  the  performance  of  his  diplomatic  duties.  It  is 
usual,  however,  to  recognize  them  as  existing  so  soon 
as  he  enters  the  territory  of  the  state  to  which  he  is 
accredited.  The  exemption  which  an  ambassador  en- 
joys extends  to  his  famity,  to  the  secretaries  and  other 
attaches  and  employees  of  the  legation,  and  to  his  do- 
mestic servants.  Some  question  has  arisen  as  to  the 
precise  extent  of  this  immunity  in  the  case  of  servants, 
especially  when  they  are  natives  of  the  country  in 
which  the  minister  is  resident.  Unquestionably  any 
privilege  which  a  servant  may  have  "  is  not  the  privi- 
lege of  the  servant  himself,  but  of  the  ambassador,  and 
is  based  on  the  ground  that  the  arrest  of  the  servant 
might  interfere  with  the  comfort  or  state  of  the  am- 
bassador." 1 

Immunity  from  Criminal  Jurisdiction. — As  respects 
criminal  jurisdiction,  an  ambassador  is  exempt  from 

1  Phillimore,  vol.  ii.,  p.  145. 


THE  EIGHT  OF  LEGATION. 

criminal  prosecution,  of  every  sort,  during  the  entire 
period  of  his  residence  at  a  foreign  court.  A  crime 
committed  against  the  person  of  an  ambassador,  except 
in  the  way  of  self-defence,  is  given  an  aggravated 
character,  and  is  punished  with  exceptional  severity 
by  the  municipal  laws  of  every  state.  The  only  excep- 
tion to  the  immunity  which  a  minister  enjoys  in  this 
respect  would  arise  from  his  own  misconduct.  For 
any  minor  violation  of  propriety  the  government  to 
which  he  is  accredited  may  signify  its  displeasure, 
either  privately  to  the  minister  himself,  or  to  his  gov- 
ernment in  the  diplomatic  way.  For  a  more  serious 
offence,  amounting  to  crime,  his  recall  may  be  demand- 
ed. If  the  request  be  not  acceded  to,  he  may  be  sum- 
marily dismissed,  or  notified  to  quit  the  territory  of 
the  offended  state.  For  crime  of  an  aggravated  sort, 
amounting  to  treason,  or  a  treasonable  conspiracy 
against  the  government,  he  is  deemed  to  have  forfeit- 
ed his  immunity,  and  may  be  forcibly  expelled ;  but  he 
may  never  be  subjected  to  criminal  prosecution  in  the 
state  in  which  he  resides  in  the  character  of  ambassador. 
Immunity  from  Civil  Jurisdiction. — A  similar  im- 
munity from  civil  jurisdiction  is  sanctioned  by  the 
general  usage  of  nations.  An  ambassador,  in  his  pub- 
lic character,  is  exempt  from  the  service  of  process, 
and  suits  against  him  can  only  be  brought  in  the  courts 
of  his  own  country.  His  furniture,  and  other  movable 
property,  are  exempt  from  taxation,  and  from  seizure 
in  execution  of  judgment.  This  immunity,  however, 
only  attaches  to  him  in  his  diplomatic  capacity.  It 
does  not  extend  to  any  other  interests  he  may  have  in 
the  state  in  which  he  is  resident ;  and,  as  a  merchant, 
trustee,  or  executor,  his  property  is  subject  to  the  local 


152  OUTLINES  OF  INTERNATIONAL  LAW. 

law.  If  he  waives  his  diplomatic  privilege,  and  sub- 
mits himself  to  the  jurisdiction  of  the  local  courts  by 
appearing  in  them  as  a  party  to  a  cause,  he  must  abide 
by  their  decision.  It  has  been  held,  however,  that  a 
judgment  against  him  can  only  be  satisfied  out  of 
property  held  by  him  in  his  private  capacity. 

Immunity  of  an  Ambassador's  Hotel. — If  the  prin- 
ciple of  exterritoriality  were  of  invariable  application, 
it  would  follow  that,  since  his  house  and  premises  are 
held  to  be  part  of  the  territory  of  the  state  which  he 
represents,  his  jurisdiction  over  them  would  be  com- 
plete and  exclusive  as  regards  the  authority  of  the 
government  to  which  he  is  accredited.  This  is  not  the 
case,  however.  If  a  crime  be  committed  by  a  person 
of  his  suite  against  a  foreigner,  the  offender  may  be 
arrested  or  detained  by  the  minister,  and  held  subject 
to  the  extradition  process,  or  sent  home  for  trial ;  or, 
with  the  consent  of  the  minister's  government,  he  may 
be  surrendered  for  trial  in  the  local  courts.  A  crime 
committed  by  one  person  of  his  suite  against  another 
is  justiciable  only  in  the  courts  of  the  minister's  coun- 
try. Nor  can  an  ambassador's  house  be  made  an  asy- 
lum for  criminals.  The  surrender  of  an  offender  who 
takes  refuge  there  may  be  demanded,  and  if  denied  he 
may  be  forcibly  removed.  The  privilege  of  an  am- 
bassador is  thus  seen  to  be,  to  a  certain  extent,  nega- 
tive in  character.  The  law  of  nations  secures  to  him 
such  personal  immunity  as  is  necessary  to  the  proper 
and  adequate  performance  of  his  duties.  It  also  guar- 
antees to  him  such  honors  and  privileges  as  befit  the 
representative  of  a  sovereign  state.  But  no  such  priv- 
ilege or  immunity  attaches  to  him  when  committing 
a  crime  or  doing  a  wrongful  act,  and  he  may  be  re- 


THE  RIGHT  OF  LEGATION.  153 

strained,  if  need  be  by  force,  if  he  attempts  to  commit 
a  crime  against  the  person  or  property  of  another.  In 
the  exercise  of  the  right  of  self-defence  he  may  be  re- 
sisted, and  wounded,  or  even  killed,  by  the  person  whom 
he  has  assaulted,  and  this  without  giving  cause  of  com- 
plaint to  the  government  which  employs  him. 

While  the  immunities  accorded  to  public  minis- 
ters are  of  the  most  extensive  and  important  character, 
amounting,  in  fact,  to  an  almost  complete  exemption 
from  the  operation  of  the  local  laws,  it  does  not  follow 
that  they  are  exempt  from  all  legal  responsibility,  or 
that  there  are  no  courts  which  have  jurisdiction  over 
them.  They  are  in  all  respects  amenable  to  the  juris- 
diction of  the  courts  of  their  own  country,  and  before 
those  courts  they  may  be  required  to  appear  as  parties 
defendant  in  causes  of  a  civil  or  criminal  character. 

Privilege  of  Religious  Worship. — The  privilege  of 
religious  worship  according  to  a  prohibited  form,  or 
one  different  from  that  prevailing  in  the  country  to 
which  an  ambassador  is  accredited,  is  now  generally 
accorded,  subject  to  certain  restrictions  as  to  publicity. 
Increasing  tolerance,  however,  in  all  matters  of  religious 
opinion  has  detracted  somewhat  from  the  advantage  of 
the  concession,  as  it  has  deprived  the  restrictions  of 
much  of  their  former  significance  and  force.  A  certain 
jurisdiction  is  also  conceded  to  ministers  in  the  per- 
formance of  certain  legal  acts  in  behalf  of  their  fellow- 
subjects,  such  as  formalizing  and  registering  marriages, 
births,  and  deaths,  and  other  acts  of  like  character. 

Exemption  from  Customs  Dues,  etc. — Foreign  minis- 
ters are  usually  exempted  from  the  payment  of  customs 
duties  upon  articles  imported  by  them,  and  intended 
for  their  personal  use.  Such  articles  are  subject  to  the 


154  OUTLINES  OF  INTERNATIONAL  LAW. 

usual  inspection,  and  precautions  calculated  to  prevent 
an  abuse  of  the  privilege  are  justifiable.  To  avoid  such 
abuses  some  states  permit  a  certain  amount  to  be  im- 
ported free  of  duty,  and  collect  the  usual  dues  upon 
articles  imported  in  excess  of  the  authorized  amount 
or  value.  The  privilege  of  an  ambassador  does  not  ex- 
empt him  from  the  observance  of  the  police  and  sanitary 
regulations  of  the  city  in  which  his  official  residence  is 
situated.  For  a  violation  of  such  ordinances,  however, 
he  can  only  be  proceeded  against  in  the  diplomatic  way. 
Nor  does  his  privilege  exempt  him  from  the  payment 
of  tolls,  or  of  postage  upon  such  of  his  correspondence 
as  may  be  intrusted  to  the  ordinary  mails  for  delivery. 

11.  Consuls. — Consuls  are  persons  appointed  by  the 
government  of  a  state  to  represent  its  commercial  in- 
terests, and  those  of  its  subjects,  in  the  principal  ports 
of  other  nations. 

The  practice  of  maintaining  consular  representatives 
in  foreign  ports  and  commercial  cities  dates  back  to 
the  very  beginning  of  modern  commerce.  It  was  de- 
veloped among  the  commercial  cities  of  the  Mediter- 
ranean, and  grew  out  of  the  exigencies  and  necessities 
of  their  intercourse  with  the  Levantine  cities,  whose 
forms  of  government  and  law  were  radically  different 
from  their  own.  "  The  ships  of  foreign  merchants  were 
held  to  be  navigated  under  the  jurisdiction  of  the  na- 
tion whose  flag  they  carried;  and  the  general  prac- 
tice was  for  vessels  engaged  in  long  sea  voyages,  some 
of  which  occupied  a  period  of  not  less  than  three  years, 
to  have  on  board  a  magistrate,  whose  duty  it  was  to 
administer  the  law  of  the  country  of  the  flag  among 
all  on  board,  not  merely  while  the  vessel  was  on  the 
high  seas,  but  while  she  was  in  a  foreign  port,  loading 


THE  RIGHT  OF  LEGATION.  155 

or  unloading  cargo.  This  magistrate  was  termed  the 
alderman  in  the  ports  of  the  North  and  Baltic  seas, 
while  in  the  Mediterranean  ports  he  was  designated 
by  the  familiar  name  of  consul,  and  was  the  precursor 
of  the  resident  commercial  consul,  who  continues  in 
the  present  day  to  exercise  within  merchant  ships  of 
his  own  nationality,  notwithstanding  they  are  within 
the  territorial  jurisdiction  of  another  state,  a  portion 
of  the  personal  jurisdiction  formerly  exercised  by  the 
ship's  consul.  The  exercise  of  this  consular  jurisdic- 
tion requires  no  fiction  of  exterritoriality  to  support  it. 
Its  limits  are  either  regulated  by  commercial  treaties, 
or,  where  it  has  originated  in  charter  privileges,  it  is 
now  held  to  rest  upon  custom." ' 

The  institution  had  become  fully  established,  in 
much  J;he  same  form  as  it  now  exists,  by  the  end  of 
the  twelfth  century,  at  which  time  Venice  was  repre- 
sented in  the  East  by  consuls  at  Constantinople,  Aleppo, 
Jerusalem,  and  Alexandria.  -The  Eastern  Empire  main- 
tained a  consul  at  Marseilles,  and  foreign  consulates 
had  long  been  established  and  recognized  at  the  port 
of  Barcelona,  in  Spain.  These  early  consuls  performed 
many  of  the  duties  of  modern  ambassadors,  and  had 
something  of  their  inviolable  character.  As  a  result 
of  the  general  establishment  of  permanent  missions  in 
Europe  in  the  seventeenth  century,  an  important  change 
was  made  in  the  consular  function  in  all  the  states  of 
the  West.  The  diplomatic  duties  were  transferred  to 
the  class  of  public  ministers,  to  whom  the  character  of 
inviolability  was  attached ;  and  there  remained  to  the 
consuls  a  class  of  duties  of  a  commercial  character. 

1  Article  by  Sir  Travers  Twiss,  (English)  Law  Magazine,  Feb.  1876. 


156  OUTLINES  OF  INTERNATIONAL  LAW. 

closely  resembling  those  which  they  now  perform.  In 
the  Levant,  however,  where  no  permanent  missions  were 
established,  consuls  continued  to  enjoy  their  old  powers 
and  privileges.  These,  to  a  great  extent,  they  still  retain. 
The  Duties  of  Consuls. — It  is  their  duty  to  watch 
over  the  commercial  interests  of  their  nation,  to  super- 
vise the  execution  of  commercial  treaties,  and  to  assist, 
by  interference  and  counsel,  such  of  their  fellow-citi- 
zens as  may  be  sojourning,  either  permanently  or  tem- 
porarily, at  the  place  of  their  official  residence.  They 
are  authorized  to  adjust  disputes  arising  on  board  ves- 
sels of  their  own  nation,  to  hear  and  act  upon  com- 
plaints of  members  of  their  crews,  to  issue  and  coun- 
tersign passports  to  their  fellow-citizens,  to  authenticate 
the  judgments  of  foreign  courts  by  their  consular  seal, 
and,  if  the  local  laws  permit,  to  act  as  administrators 
upon  the  estates  of  decedents  of  their  own  nationality. 
They  are  also  authorized  to  register  births,  marriages, 
and  deaths,  and  may  solemnize  marriages  when  the 
contracting  parties  are  of  the  same  nationality  as 
themselves,  unless  forbidden  to  do  so  by  the  municipal 
law  of  their  own  states,  or  that  of  the  state  in  which 
they  officially  reside.  They  are  permitted  to  exercise 
a  certain  voluntary  jurisdiction  over  their  fellow-citi- 
zens in  cases  with  which  the  local  law  has  no  concern ; 
"  but  no  contentious  jurisdiction  can  be  exercised  over 
their  fellow-countrymen  without  the  express  permis- 
sion of  the  state  in  which  they  reside,  and  no  Christian 
state  has,  as  yet,  permitted  the  criminal  jurisdiction  of 
foreign  consuls." '  They  are  presumed  to  be  entitled 
to  all  the  powers  and  privileges  that  their  predecessors 

1  Philliinore,  vol.  ii.,  p.  170. 


THE  RIGHT  OF  LEGATION. 

have  enjoyed,  and  may  properly  claim  any  right  exer- 
cised by  a  consul  of  another  nation,  unless  such  right 
is  based  upon  treaty  stipulations. 

12.  Classification  of  Consuls,  and  Method  of  Appoint- 
ment.— They  are  usually  classified  into  consuls-general, 
consuls,  vice-consuls,  and  consular  agents,  and  each 
state,  by  its  municipal  law,  determines  the  manner  of 
appointment,  the  tenure  of  office,  and  the  special  duties 
of  its  consular  representatives  in  foreign  ports.    In  this 
way  a  state  may  confer  upon  its  consuls  such  power 
and  jurisdiction  as  it  wishes  them  to  exercise,  provided 
such  exercise  of  jurisdiction  is  sanctioned  by  the  usage 
of  nations,  or  has  been  conceded  by  treaty.     In  the 
Christian  states  of  Europe  and  America  consuls  have 
none  of  the  privileges  and  immunities  of  ambassadors. 
In  the  Levant,  however,  in  many  Asiatic  and  African 
ports,  and  in  the  islands  of  the  sea,  they  perform  the 
duties  and  are  entitled  to  the  exemptions  of  public 
ministers. 

13.  Privileges  of  Consuls.  —  Consuls  enjoy  certain 
privileges  which  are  sanctioned  by  International  Law. 
They  are  exempt  from  personal  imposts  and  the  per- 
formance of  personal  services,  from  the  quartering  of 
troops,  and,  in  general,  from  such  restrictions  as  are 
calculated  to  interfere  with  the  efficient  performance 
of  their  consular  duties.    They  are  usually  permitted 
to  place  their  national  flags  and  coats-of-arms  over 
their  offices,  and  in  most  states  their  archives  are  re- 
garded as  inviolable. 

They  may  engage  in  business,  if  the  municipal  law 
of  their  own  country  permits  them  to  do  so,  and  may 
be  prohibited  from  so  doing  by  the  same  authority. 
They  are  in  all  respects  amenable  to  the  civil  and 


158  OUTLINES  OF  INTERNATIONAL  LAW. 

criminal  jurisdiction  of  the  state  in  which  they  are 
resident.  They  may  sue  and  be  sued  in  its  courts ; 
they  are  in  every  way  subject  to  process,  and  judg- 
ments against  them  may  be  satisfied  out  of  their  prop- 
erty. Halleck  holds  that  they  may  be  punished  for 
their  criminal  offences  by  the  laws  of  the  state  in 
which  they  reside,  or  sent  back  to  their  own  country 
for  trial,  at  the  discretion  of  the  government  which 
they  have  offended.  A  distinction  is  made,  however, 
between  personal  offences  and  official  acts  done  under 
the  authority,  or  by  the  direction,  of  their  own  gov- 
ernments. The  latter  are  matters  for  diplomatic  ar- 
rangement between  the  respective  states,  and  are  not 
justiciable  by  the  local  courts.1  Consuls  are  subject  to 
taxation  and  to  the  payment  of  customs  dues.  Their 
place  of  residence  is  regarded  as  their  domicile  to  the 
extent  that,  in  time  of  war,  their  goods  on  the  high 
seas  are  subject  to  seizure  if  their  domicile  gives  them 
the  hostile  character. 

14.  By  whom  Appointed. — Consuls  are  appointed  by 
the  sovereign,  or  chief  executive  authority  of  the  state 
which  they  represent,  subject  to  such  restrictions  in 
the  matter  of  citizenship,  character,  and  qualifications 
as  are  determined  by  its  municipal  laws.  They  are 
provided  with  commissions,  or  letters  of  appointment, 
which  are  submitted,  through  their  ministers,  to  the 
Department  of  Foreign  Affairs  of  the  state  in  which 
they  are  to  perform  consular  duty.  If  that  govern- 
ment consents  to  recognize  them  in  the  capacity  of 
consuls,  an  exequatur  is  issued,  upon  the  receipt  of 
which  they  are  authorized  to  enter  upon  the  perform- 

1  Halleck,  vol.  i.,  p.  313. 


THE  RIGHT  OF  LEGATION.  159 

ance  of  their  duties.  For  misconduct  or  crime,  or  for 
excess  of  jurisdiction,  the  exequatur  may  be  withdrawn 
or  revoked  at  any  time ;  and  if  this  action  be  taken  for 
just  and  sufficient  cause,  the  government  of  the  state 
to  which  the  consul  belongs  will  have  no  reasonable 
ground  of  complaint.  This  procedure  is  by  no  means 
uncommon.  In  October,  1793,  the  exequatur  of  the 
French  consul  at  Boston  was  withdrawn  for  having 
taken  part  in  an  attempt  to  rescue  a  vessel  out  of  the 
hands  of  the  United  States  marshal,  which  had  been 
brought  in  as  a  French  prize,  but  upon  which  process 
had  been  served  at  the  suit  of  the  British  consul,  who 
claimed  that  she  had  been  illegally  captured  in  the 
neutral  waters  of  the  United  States.1  Another  and 
more  remarkable  case  occurred  in  1861.  In"  order  to 
protect  British  commerce,  Her  Majesty's  Government 
was  desirous  that  the  Confederates  should  observe  the 
last  three  articles  of  the  Declaration  of  Paris,  and  ac- 
cordingly Mr.  Bunch,  the  British  consul  at  Charleston, 
S.  C.,  was  instructed  to  communicate  this  desire  to  the 
Confederate  authorities.  The  United  States  thereupon 
demanded  that  Mr.  Bunch  should  be  removed  from  his 
office,  on  the  ground  that  the  law  of  the  United  States 
forbade  any  person,  not  specially  appointed,  from  coun- 
selling, advising,  or  interfering  in  any  political  corre- 
spondence with  the  government  of  any  foreign  state 
in  relation  to  any  disputes  or  controversies  with  the 
United  States,  and  that  Mr.  Bunch  ought  to  have 
known  of  this  law,  and  to  have  communicated  it  to 
his  government  before  obeying  their  instructions.  It 
was  also  urged  that  the  proper  agents  to  make  known 

1  Hildreth,  "History  of  the  United  States,"  vol.  iv.,  p.  437. 


160  OUTLINES  OF  INTERNATIONAL  LAW. 

the  wishes  of  a  foreign  government  were  its  diplomatic, 
and  not  its  consular,  officers.  On  these  grounds  Mr. 
Bunch's  exequatur  was  withdrawn.1 

15.  Manner  of  Appointment  in  the  United  States. — 
The  members  of  the  United  States  Consular  Establish- 
ment are  arranged  into  three  principal  classes — consuls- 
general,  consuls,  and  commercial  agents.2  They  are 
appointed  by  the  President  with  the  consent  of  the 
Senate.  They  receive  fixed  salaries,  augmented  in  cer- 
tain cases  by  fees,  and  those  whose  salaries  exceed  one 
thousand  dollars  per  annum  are  forbidden  to  engage 
in  trade.  Consular  positions  of  the  highest  class  can 
only  be  filled  by  citizens  of  the  United  States.  Their 
general  duties  are  ascertained  and  fixed  by  law.  They 
are  required  to  act  in  behalf  of  owners  of  stranded  ves- 
sels,3 to  receive  from  the  masters  of  American  vessels, 
upon  their  arrival  in  port,  their  registers,  sea  letters, 
and  Mediterranean  passports,  and  to  return  them  when 
a  proper  clearance  has  been  obtained,  by  such  masters, 
from  the  port  authorities.4  They  are  required  to  make 
reclamation  of  deserters  from  merchant  vessels,  and, 
when  treaty  stipulations  authorize  it,  to  demand  from 
the  local  authorities  such  assistance  as  they  may  need 
to  effect  their  capture  and  return.5  They  are  also  re- 
quired to  certify  invoices  of  merchandise  which  it  is 
proposed  to  import  into  the  United  States,  and  to  re- 

1  Boyd's  Wheaton,  p. 305;  "United  States  Diplomatic  Correspond- 
ence," 1862,  p.  1. 

2  Halleck,  vol.  i.,  pp.  315,  316,  gives  a  full  list  of  the  legal  and  act- 
ing titles  of  United  States  consuls.    For  fuller  information  as  to  their 
powers  and  duties,  see  the  official  "Regulations  Prescribed  for  the 
Consular  Service  of  the  United  States,"  Washington,  Oct.  1, 1870. 

3  "  Revised  Statutes  of  the  United  States,"  §  4238. 

4  Ibid. ,  %%  4559, 4586.  5  Ibid. ,  §§  4598-4600. 


THE  RIGHT  OF  LEGATION. 

quire  satisfactory  evidence,  by  oath  if  need  be,  of  their 
correctness.1  They  are  to  keep  lists  of  seamen  shipped 
and  discharged  by  them,  and  of  vessels  arrived  and 
cleared,  with  an  account  of  the  nature  and  value  of 
their  cargoes.3  They  are  to  care  for  destitute  seamen, 
and  to  cause  the  same  to  be  transported  to  the  United 
States,3  and  are  to  procure  and  transmit  to  the  State 
Department  such  authentic  commercial  information 
respecting  the  country  in  which  they  reside  as  may  be 
required  by  the  head  of  that  department.4  They  are 
authorized  to  solemnize  marriages  between  persons 
who  would  be  permitted  by  law  to  marry  if  resident 
in  the  District  of  Columbia,5  and  may  take  possession, 
in  certain  cases,  of  the  personal  estates  of  any  citizen 
of  the  United  States  who  may  die  within  their  con- 
sular jurisdiction  leaving  no  legal  representatives. 
They  may  sell  such  of  this  property  as  is  of  a  perish- 
able nature  to  pay  debts  due  from  the  estate,  transmit- 
ting the  residue  to  the  treasury  of  the  United  States.' 
The  President  is  empowered  to  define  the  territorial 
limits  of  the  different  consulates,  and  to  make  all  need- 
ful regulations  for  the  consular  service. 

16.  Consular  Jurisdiction. — In  certain  Eastern  coun- 
tries, whose  standards  of  law  and  morals  differ  mate- 
rially from  our  own,  an  extensive  jurisdiction,  both 
civil  and  criminal,  is  exercised  by  the  consuls  of  the 
principal  Western  powers.  It  was  obtained  in  the  first 
instance  by  treaty  stipulation,  and  by  later  treaties  has 
been  modified  and  extended,  from  time  to  time,  as  the 
exigencies  of  commercial  intercourse  made  such  changes 


1  "Revised  Statutes  of  the  United  States,"  §  2862.        8  Ibid.,  §  1708. 
3Jbid.,$4577.       *  Ibid.,  §1711.       *  Ibid.,  %  4082.       •  Ibid.,  §1709. 
11 


162  OUTLINES  OF  INTEKNATIONAL  LAW. 

either  necessary  or  desirable.  The  effect  has  been  to 
withdraw  foreigners  almost  completely  from  the  oper- 
ation of  the  local  laws,  and  to  subject  them  to  the 
jurisdiction  of  the  consuls  of  their  respective  states. 
The  extent  of  this  jurisdiction  is  defined  by  treaties 
with  the  Christian  powers.  These  treaties  are  carried 
into  effect  by  the  municipal  laws  of  the  signatory 
states,  which  determine,  within  the  limits  of  the  treaty 
concession,  the  extent  and  character  of  the  consular 
jurisdiction.  "  This  jurisdiction  is  subject,  in  civil 
cases,  to  an  appeal  to  the  superior  tribunals  of  their 
own  country.  The  criminal  jurisdiction  is  usually 
limited  to  the  infliction  of  pecuniary  penalties,  and,  in 
offences  of  a  higher  grade,  the  consular  functions  are 
similar  to  those  of  a  police  magistrate,  orjuge  cPinstruc*. 
tion.  He  collects  the  documentary  and  other  proofs, 
and  sends  them,  together  with  the  prisoner,  home  to 
his  own  country  for  trial." l  Such  jurisdiction  was 
obtained  for  consuls  of  the  United  States  by  treaties 
made  at  different  times  with  Turkey,  China,  and  Japan, 
and  with  Siam  and  Madagascar.  Suitable  laws  have 
been  passed  by  Congress  to  give  effect  to  their  pro- 
visions. By  the  Act  of  July  1, 18TO,  the  operation  of 
the  statute  was  extended  "  to  any  country  of  like  char- 
acter with  which  the  United  States  may  hereafter  en- 
ter into  treaty  relations." a  The  jurisdiction  conferred 
upon  United  States  ministers  and  consuls  by  the  Act 
of  June  22,  1860,  is  both  civil  and  criminal,  but  is  re- 

1  Boyd's  Wheaton,  p.  152;  Boyd,  "  The  Merchant  Shipping  Laws," 
index,  title,  "Consular  Offices;"  Pardessus,  "  Droit  Commercial," 
pt.  vi.,  tit.  6,  chap,  ii.,  §  2;  chap,  iv.,  §§  1,  2,  3;  De  Steck,  "Essai  sur 
les  Consuls,"  §  7,  par.  30-40. 

3  Act  of  July  1, 1870,  extending  Act  of  June  22,  1860. 


THE  RIGHT  OF  LEGATION. 

stricted  in  its  exercise  to  citizens  of  the  United  States. 
Consuls  are  authorized  to  hear,  and  finally  decide,  civil 
causes  in  which  the  amount  involved,  exclusive  of 
costs,  does  not  exceed  five  hundred  dollars.  When  the 
amount  exceeds  that  sum,  or  in  his  opinion  the  case 
involves  legal  perplexities,  the  consul  is  authorized  to 
summon  not  less  than  two,  nor  more  than  three,  citi- 
zens of  the  United  States,  who  are  to  be  selected,  by 
lot,  from  a  list  previously  submitted  to  the  minister 
and  approved  by  him.  If  the  consul  and  his  advisers 
concur  in  opinion,  their  decision  is  final.  If  they  fail 
to  agree,  or  if  the  amount  at  issue  exceeds  five  hundred 
dollars,  either  party  may  appeal  to  the  minister.  In 
China  and  Japan  the  decision  of  the  minister  is  final 
in  all  suits  when  the  amount  at  issue  does  not  exceed 
two  thousand  five  hundred  dollars.  Cases  involving  a 
greater  amount  may  be  appealed  to  the  United  States 
Circuit  Court  for  the  district  of  California,  whose  de- 
cision in  the  case  is  final. 

Consuls  are  also  authorized  to  hear  and  decide  crim- 
inal cases,  and,  in  the  event  of  conviction,  to  impose 
penalties  of  not  more  than  ninety  days'  imprisonment, 
or  a  fine  not  exceeding  five  hundred  dollars.  In  cases 
not  involving  a  higher  penalty  than  one  hundred  dol- 
lars' fine,  or  sixty  days'  imprisonment,  their  decision  is 
final.  Whenever  the  consul  is  of  opinion  that  an  im- 
portant question  of  law  is  involved  in  the  decision  of 
a  case,  or  deems  a  greater  punishment  necessary  than 
he  is  authorized  to  inflict,  he  may  summon  as  advisers, 
in  cases  not  capital,  not  less  than  one,  nor  more  than 
four,  American  citizens  to  assist  him  in  his  decision. 
In  cases  involving  capital  punishment  not  less  than 
four  such  assistants  must  be  summoned.  In  the  event 


164:  OUTLINES  OF  INTERNATIONAL  LAW. 

of  disagreement  the  case,  with,  evidence  and  opinions, 
is  forwarded  to  the  minister  for  decision.  His  decision 
is  final,  except  in  cases  arising  in  China  and  Japan, 
from  which  an  appeal  may  be  taken,  as  in  civil  cases, 
to  the  United  States  Circuit  Court  in  California.  The 
jurisdiction  of  the  minister  is  appellate,  except  in  capi- 
tal cases,  or  when  the  consul  is  a  party ;  and,  finally, 
ministers  and  consuls  are  enjoined  to  exert  all  their 
official  influence  to  induce  litigant  parties  to  adjust 
their  differences  by  arbitration.1 

A  somewhat  similar  jurisdiction  is  exercised  by  the 
British  consuls  in  the  East. 

References. — Most  existing  works  upon  the  subject  of  diplomacy 
are  of  foreign  origin.  Many  of  them  either  appeared  originally  in 
French,  or  are  accessible  in  French  translations.  The  most  impor- 
tant of  these  are,  for  the  period  before  Grotius,  Nys,  "  Origines 
de  la  Diplomatic,"  and,  for  its  later  history  and  practice,  Ch.  de 
Martens,  "  Le  Guide  Diplomatique,"  and  "  Causes  C61ebres  du  Droit 
des  Gens  "  (1827),  and  the  "  Nouvelles  Causes  CSlebres,"  published 
by  the  same  author  in  1844.  See  also  the  "Trait6  Complet  de 
Diplomatic,"  par  un  Ancien  Miuistre;  Schuyler,  "  American  Diplo- 
macy ;"  and  the  "  Rights  and  Duties  of  Diplomatic  Agents,"  by  E. 
C.  Grenville-Murray.  The  following  works  upon  the  functions  and 
duties  of  consuls  may  be  consulted  with  advantage :  "  Dictionnaire 
ou  Manuel  Lexique  du  Diplomate  et  du  Consul,"  by  Baron  F.  de 
Cussy ;  Miltitz, "  Manuel  des  Consuls ;"  Neumann, "  Handbuch  des 
Consulatswesens ;"  and  Henshaw's  and  Warden's  works  on  the 
duties  of  consuls.  As  the  exercise  of  consular  jurisdiction  is  based 
upon  treaty  stipulations,  it  is  necessary,  in  conducting  inquiries 
upon  this  subject,  to  consult  the  treaties  themselves.  For  this 
purpose,  see  the  collections  referred  to  at  the  end  of  chap.  viii. 
For  a  very  full  account  of  the  diplomatic  and  consular  policy  of 
the  United  States,  see  Schuyler,  "American  Diplomacy  and  the 
Furtherance  of  Commerce."  . 

1  "Revised  Statutes  of  the  United  States,"  §§  4083-4148. 


CHAPTER  VIII. 

TREATIES   AND   CONVENTIONS. 

1.  TREATIES  are  compacts  or  agreements  entered 
into  by  sovereign  states  for  the  purpose  of  increas- 
ing, modifying,  or  defining  their  mutual  duties  and 
obligations. 

Purpose  of  Treaties. — To  secure  the  observance  of 
the  generally  accepted  rules  of  International  Law, 
treaties  are  not  necessary,  certainly  among  Christian 
states.  They  become  so  only  when  states  find  it  either 
necessary  or  expedient  to  amend  or  modify  their  ex- 
isting obligations,  to  define  usages  that  are  not  clear, 
to  secure  concerted  action  looking  to  the  abandon- 
ment of  unjust  or  oppressive  practices,  or  to  obtain 
general  sanction  in  behalf  of  improved  methods,  or 
the  general  acceptance  of  desirable  reforms. 

The  Right  of  Making  Treaties. — The  right  of  mak- 
ing treaties  is  one  of  the  essential  attributes  of  sover- 
eignty, and  there  can  be  no  surer  test  of  a  semi-sover- 
eign or  dependent  state  than  is  deduced  from  the  fact 
that  its  ability  to  enter  into  treaty  relations  has  been 
abridged  or  destroyed.  Dependent  states,  however, 
may  retain  the  right,  to  a  greater  or  less  degree,  de- 
pending upon  the  number  and  character  of  the  sover- 
eign rights  which  they  have  yielded,  or  of  which  they 
have  been  deprived.  They  frequently  retain  the  right 
of  making  treaties  of  commerce  and  extradition,  postal 
and  customs  conventions,  and,  in  some  cases,  treaties 


1(56  OUTLINES  OF  INTERNATIONAL   LAW. 

of  alliance  and  naturalization.  The  existence  of  such 
powers,  however,  would  be  inconsistent  with  any  con- 
siderable degree  of  dependence  on  the  part  of  the  semi- 
sovereign  state.  In  the  German  Confederation,  as  re- 
organized in  1815,  a  considerable  degree  of  treaty-mak- 
ing power  wTas  reserved  to  the  component  states.  The 
present  German  empire  is  a  closer  confederation,  the 
imperial  government  having  sole  power  to  conclude 
treaties  of  peace  or  alliance,  or  treaties  of  any  kind  for 
political  objects,  commercial  treaties,  conventions  reg- 
ulating questions  of  domicile,  emigration,  and  postal 
affairs,  protection  of  copyright,  and  consular  matters, 
extradition  treaties,  and  other  conventions  connected 
with  the  administration  of  civil  or  criminal  law.1  The 
states  of  the  American  Union  are  forbidden  to  enter 
into  treaties  with  foreign  states;  or  to  make  agree- 
ments with  other  states  of  the  Union,  except  with  the 
consent  of  Congress. 

Contracts  and  Agreements  with  Individuals. — As 
sovereign  states  have  many  of  the  essential  character- 
istics of  corporations,  they  have  the  power  of  entering 
into  contracts  or  agreements  with  individuals.  These 
instruments  are  not  treaties,  however,  nor  are  they, 
in  all  respects,  the  same  as  contracts  between  private 
persons  or  corporations.  This  for  the  reason  that, 
where  a  sovereign  state  is  a  party  to  a  contract,  it  can- 
not be  coerced  into  specific  performance  of  its  agree- 
ment except  by  reprisals  or  war ;  nor,  without  its  con- 
sent, can  it  be  sued  for  a  failure  to  fulfil  its  obligation 
to  an  individual. 

2.  The  Treaty-making  Power. — That  authority  in 

1  Hall,  p.  22;  Hertslet,  "Map  of  Europe  by  Treaty,"  p.  1931. 


TREATIES  AND  CONVENTIONS. 

the  government  of  a  state  which  is  intrusted  with  the 
duty  of  entering  into  treaty  relations  is  called  the 
treaty-making  power.  In  states  having  a  monarchical 
form  of  government  the  treaty-making  power  is  one 
of  the  prerogatives  of  the  crown ;  in  states  having  re- 
publican institutions  it  is  exercised  by  the  executive, 
either  directly,  or  subject  to  the  approval  of  some 
branch  of  the  legislative  department  of  the  govern- 
ment. The  constitution  and  laws  of  every  state  define 
the  treaty-making  power,  and  determine  what  restric- 
tions, if  any,  are  placed  upon  its  exercise ;  and  any 
agreements  undertaken  in  excess  of  these  limitations 
are  unauthorized  and  void. 

3.  Conditions  Essential  to  the  Validity  of  Treaties. — 
To  the  validity  of  a  treaty  it  is  essential:  1st.  That 
the  contracting  parties  should  possess  the  power  to  en- 
ter into  treaty  engagements.  2d.  The  formal  consent 
of  the  parties  must  be  given,  and  this  consent  must  be 
mutual,  reciprocal,  and  free.  3d.  The  subject  of  stip- 
ulation must  not  be  opposed  to  morality  and  justice. 

(a.)  The  Power  of  Contracting  Parties.  —  States 
which  are  parties  to  a  proposed  agreement  must  pos- 
sess full  treaty-making  power  as  to  its  subject-matter. 
Dependent  states  cannot  enter  into  agreements  which 
are  not  authorized  by  their  dependent  condition ;  and 
states  which  are  members  of  a  confederation  cannot 
treat  upon  subjects  which  are  reserved  to  the  central 
government  by  the  constitution  of  the  confederacy. 
In  the  same  manner  the  agents  who  are  empowered 
to  negotiate  treaties  may  not  exceed  the  limits  laid 
down  in  their  instructions  or  full  powers.  Any  agree- 
ments entered  into  by  them  in  excess  of  their  author- 
ity are  void,  and  ratification  of  them  may  be  refused. 


168  OUTLINES   OF  INTERNATIONAL  LAW. 

Such  unauthorized  agreements  have  been  made  at  dif- 
ferent times,  usually  by  military  commanders.  They 
are  called  sponsions,  and  are  invalid  unless  approved 
by  the  sponsor's  government. 

(5.)  The  Consent  of  the  Contracting  Parties. — The 
consent  of  the  participating  states  must  be  expressly 
and  freely  given.  It  must  also  be  reciprocal ;  and  one 
state,  by  its  ratification  or  approval  of  a  treaty,  can- 
not constrain  another  to  ratify  it,  or  to  regard  its  pro- 
visions as  binding.  In  contracts  between  individuals, 
if  either  party  act  under  constraint,  the  resulting  con- 
tract is  void.  In  the  preparation  of  certain  treaties, 
however,  especially  in  treaties  of  peace  and  in  cartels 
and  capitulations,  one  of  the  contracting  parties  acts 
under  constraint  of  the  most  oppressive  and  humiliat- 
ing land ;  but  this  does  not  have  the  effect  of  invali- 
dating the  treaty.  "Private  contracts  may  be  set 
aside  on  the  ground  of  the  influence  of  fraud  and  un- 
fair dealing,  arising  from  their  manifest  injustice  and 
want  of  mutual  advantage.  But  no  inequality  of  ad- 
vantage, no  lesion,  can  invalidate  a  treaty."  J 

(c.)  It  must  be  Possible  of  Execution. — The  conduct 
of  states,  like  that  of  individuals,  is  regulated  by  well- 
known  moral  standards,  from  which  they  are  bound 
not  to  depart.  They  are,  therefore,  prevented  from 
making  that  a  subject  of  treaty  stipulation  the  exe- 
cution of  which  is  physically  or  morally  impossible. 
Heffter  holds  those  conditions  to  be  morally  impossi- 
ble which  are  repugnant  to  moral  order,  or  are  opposed 
to  the  free  development  of  nations.8  Such  would  be 
stipulations  tending  to  the  destruction  of  a  sovereign 

1  Phillimore,  vol.  ii.,  p  72.  2  Heffter,  §  83. 


TREATIES  AND  CONVENTIONS.  169 

state,  or  the  establishment  of  slavery.  The  same  may 
be  said  of  provisions  which  are  opposed  to  previous 
treaties  with  other  powers,  or  which  are  prejudicial  to 
the  sovereign  rights  or  powers  of  a  third  state. 

4.  Binding  Force  of  Treaties.  —  Treaties   entered 
into  in  conformity  to  these  conditions  are  binding 
upon  all  the  signatory  parties,  and  they  continue  in 
force,  whatever  changes  may  take  place  in  the  inter- 
nal affairs  of  the  participant  states.     Changes  of  gov- 
ernment affect  in  no  way  their  binding  force,  and  they 
cease  to  be  obligatory  only  when  a  state  ceases  to  ex- 
ist.   Their  inviolability,  even  when  not  especially  guar- 
anteed, is  the  first  law  of  nations.     Obligations  created 
by  treaty  are  of  the  most  sacred  character,  and  their 
violation,  if  persisted  in,  or  not  atoned  for,  is  univer- 
sally regarded  as  a  just  cause  for  war. 

5.  Manner   of  Negotiating   Treaties.  —  In  former 
times  treaties  were  frequently  negotiated  by  sover- 
eigns in  person ; '  at  present  they  are  usually  entered 
into  by  ministers  or  plenipotentiaries,  selected  for  the 
purpose  by  the  proper  municipal  authority,  and  fur- 
nished with  special  full  powers  to  act  in  behalf  of  their 
respective  governments  in  the  preparation  and  signa- 
ture of  the  treaty.     Preliminary  negotiations  are  usu- 
ally necessary,  to  determine  the  place  and  time  of 
meeting  and  the  conditions  of  representation.     In  the 
preparation  of  treaties  of  peace,  or  of  agreements  pre- 
liminary to  such  treaties,  the  neutrality  of  the  place  is 
secured  by  proper  guarantees,  and  the  personal  secu- 
rity of  the  ambassadors  is  carefully  provided  for,  not 

1  The  Holy  Alliance  of  Sept.  14  (26),  1815,  was  signed  by  the  em- 
perors of  Austria  and  Russia  and  the  king  of  Prussia. 


170  OUTLINES  OF  INTERNATIONAL  LAW. 

only  at  the  sessions  of  the  conference,  but  in  their 
journeyings  to  and  from  the  place  of  meeting.  If  the 
proposed  agreement  be  one  of  general  interest,  the 
questions  to  be  discussed  are  submitted  to  the  powers 
in  advance,  the  limits  of  discussion  are  to  some  extent 
defined,  and  the  number  and  character  of  representa- 
tives from  each  state  is  determined  upon. 

At  the  time  appointed  the  representatives  assemble 
and  exchange  their  credentials  and  full  powers.  If 
several  states  are  represented  the  conference  is  usually 
presided  over  by  the  principal  minister  of  foreign  af- 
fairs of  the  state  in  whose  territory  its  sessions  are 
held,  or  by  the  representative  of  the  government  with 
which  the  project  originated.  If  need  be,  rules  of  proced- 
ure are  agreed  to  at  a  preliminary  session.  Each  power 
represented  has  a  right  to  be  heard,  at  length,  upon  all 
projects  submitted  for  discussion  which  in  any  wray  af- 
fect its  interests.  The  proceedings  of  each  session  are  re- 
duced to  writing,  and  are  properly  authenticated,  and 
the  negotiation  continues  until  an  agreement  has  been 
reached,  or  until  the  impossibility  of  reaching  such  an 
agreement  has  become  apparent.  If  questions  are  sub- 
mitted to  vote,  nothing  short  of  unanimous  consent  is 
sufficient  to  carry  a  measure  of  prime  importance.  Af- 
ter an  essential  article  or  stipulation  has  been  adopted, 
the  majority  rule  may  prevail  in  the  decision  of  ques- 
tions of  detail,  or  in  accessory  stipulations  of  minor  im- 
portance. 

Language  Used  in  the  Preparation  of  Treaties. — 
The  language  used  in  the  preparation  of  treaties  is 
subject  to  no  fixed  rule.  Each  party  may,  of  right, 
insist  upon  the  use  of  its  own  in  the  preparation  of 
treaties,  as  in  every  other  public  act,  or  a  neutral  Ian- 


TREATIES  AND  CONVENTIONS. 

guage  may  be  adopted.  In  the  former  case  there 
would  be  as  many  original  copies  as  there  were  par- 
ticipant states.  This  would  be  true  in  form  only,  and 
not  in  fact,  since  one  of  these  originals  would  furnish 
a  model  upon  which  the  translation  of  the  others  would 
be  based.  Latin  was  formerly  used,  as  a  convenient 
and  generally  understood  neutral  language.  It  is  still 
the  official  language  of  the  Holy  See.  Toward  the 
close  of  the  seventeenth  century  it  was  replaced  by  the 
French,  which  became  the  general  diplomatic  language 
of  Europe  and  America.  It  still  retains  that  character 
to  a  higher  degree  than  any  other.  Since  the  begin- 
ning of  this  century  the  greater  part  of  the  treaties 
which  have  been  negotiated  in  Europe  have  been 
drawn  up  and  signed  in  French.  When  France  is  one 
of  the  signatory  parties,  however,  a  clause  is  usually 
inserted  to  the  effect  that  the  use  of  that  language  is 
not  to  be  regarded  as  constituting  a  precedent.  Trea- 
ties to  which  England  or  the  United  States  are  parties 
are  usually  drawn  up  in  both  languages,  in  parallel 
columns.  Treaties  with  the  Ottoman  Porte  are  drawn 
up  in  Arabic  and  French. 

Form  and  Signature. — Xo  rigorous  form  is  neces- 
sary to  be  followed  in  the  preparation  of  these  instru- 
ments so  long  as  the  conditions  of  the  agreement  are 
clearly  expressed,  and  assented  to,  by  the  signatory  par- 
ties. Those  entered  into  by  Christian  states  begin  with 
a  solemn  invocation  to  the  Deity,  though  this  is  fre- 
quently omitted  in  treaties  of  a  commercial  character. 
The  first  paragraph  contains  the  name  and  designa- 
tion of  the  contracting  parties,  followed  by  a  clause 
stating,  in  general  terms,  the  object  of  the  treaty  or 
convention,  and  by  the  names  and  titles  of  the  minis- 


1Y2  OUTLINES  OF  INTERNATIONAL  LAW. 

ters  who  have  been  empowered  to  represent  the  inter- 
ested states  in  the  negotiation.  Next  follows  the  body 
of  the  treaty,  which  is  made  up  of  stipulations  mutu- 
ally agreed  to.  It  is  divided  into  articles  and  clauses, 
the  last  of  which  fixes  the  terms  of  ratification  and  the 
date  of  signature.  As  many  copies  are  prepared  as 
there  are  contracting  parties  ;  and,  in  affixing  the  sig- 
natures and  seals,  the  representative  of  each  state  signs 
first  the  copy  intended  for  his  own  government.  The 
order  of  the  other  signatures  is  determined  by  lot,  or 
alphabetically,  the  initial  letter  of  each  state  determin- 
ing the  order  of  signature. 

JRatification  of  Treaties. — On  account  of  the  magni- 
tude and  importance  of  the  interests  involved,  treaties 
acquire  binding  force  only  when  they  have  been  rati- 
fied by  the  sovereign  authority  of  the  states  which  are 
parties  to  their  operation,  and  all  modern  treaties  con- 
tain provisions  stipulating  for  such  an  exchange  of 
ratifications.  Ratification  by  one  party  does  not  con- 
strain the  others  to  a  similar  course ;  but  the  act  of 
ratification,  when  completed  by  all  parties,  is  retro- 
active in  its  operation,  and  gives  effect  to  the  treaty 
from  the  date  of  signature,  unless  the  contrary  is  ex- 
pressly stipulated.  There  has  been  considerable  dis- 
cussion as  to  whether  ratification  could  be  withheld, 
without  lack  of  good  faith,  in  treaties  containing  no 
such  provision.  Some  Continental  writers,  following 
the  rule  of  the  Roman  Law,  have  held  that  states  are 
bound  by  the  acts  of  their  plenipotentiaries,  when  they 
have  not  exceeded  their  full  powers  and  confidential 
instructions;  as  principals  are  bound  by  the  acts  of 
their  duly  authorized  agents.  Others  justly  make  a 
distinction,  in  this  respect,  between  treaties  and  con- 


TREATIES  AND  CONVENTIONS. 

tracts.  Treaties  are  compacts  between  sovereign  states, 
involving  interests  of  the  greatest  magnitude,  and  often 
of  the  most  intricate  character,  far  transcending  in  im- 
portance the  agreements  of  individuals,  which,  how- 
ever complicated,  are  relatively  simple  in  comparison. 
However  full  and  minute  the  powers  and  instructions 
of  ministers  may  be,  they  are  still  liable  to  errors  of 
judgment  or  mistakes  of  policy,  which  can  only  be  dis- 
covered and  remedied  by  a  careful  and  disinterested 
examination  of  their  work,  and  a  full  criticism  of  its 
provisions  from  all  points  of  view. 

Treaties  sometimes  contain  provisions  for  the  acces- 
sion of  third  parties  to  their  operation.  The  Declara- 
tion of  Paris  is  an  example.  Such  accession  is  had  by 
a  formal  act  on  the  part  of  the  state  desiring  partici- 
pation, by  which  it  assumes,  and  agrees  to  be  bound 
by,  the  obligations  of  the  treaty.  This  is  especially 
the  case  in  treaties  having  in  view  some  modification 
or  amendment  of  the  rules  of  International  Law.  The 
provisions  of  the  Declaration  of  Paris,  in  1856,  have 
been  acceded  to  by  many  states  in  Europe  and  Amer- 
ica. England  and  the  United  States,  in  the  Treaty  of 
Washington,  of  1871,  agreed  to  use  their  influence  to 
induce  other  nations  to  accept  the  principles  of  mari- 
time law  laid  down  in  that  instrument. 

6.  Classification  of  Treaties. — Treaties  are  susceptible 
of  classification,  according  to  their  subject-matter,  into : 

(a.)  Treaties,  properly  so  called. 

(b.)  Cartels. 

(c.)  Capitulations. 

(d.)  Suspensions  of  Arms,  or  Truces. 

Those  of  the  first  class,  or  treaties  proper,  are  again 
subdivided  into : 


OUTLINES  OF  INTERNATIONAL  LAW. 

(1.)  Transitory  Agreements  or  Conventions.  —  These 
are  treaties  the  immediate  execution  of  which  is  essen- 
tial, and  which  expire  when  the  stipulated  act  has  been 
performed.  Their  effects  only  are  permanent.  Such 
are  boundary  conventions,  treaties  of  cession,  etc.,  cor- 
responding to  executed  contracts  at  Common  Law. 

(2.)  Permanent  Treaties.  —  These  have  continuing 
effect,  and  regulate  the  future  relations  and  actions  of 
the  contracting  parties.  Treaties  of  friendship  and 
commerce,  of  neutrality,  extradition,  and  naturaliza- 
tion, and  postal  and  customs  conventions  are  exam- 
ples of  this  class.  These  treaties  may  be  of  perpetual 
or  limited  duration.  They  may  go  into  effect  at  a 
fixed  date  in  the  future,  and  may  expire  at  a  certain 
date,  at  the  expiration  of  a  certain  period,  or  may  be 
terminated  at  the  will  of  either  party,  upon  due  notifi- 
cation. Their  existence  may  be  terminated  by  war,  or 
they  may  come  into  effect  only  during  hostilities  be- 
tween the  interested  parties. 

Cartels  are  agreements  entered  into  in  time  of  war, 
for  the  exchange  of  prisoners.  They  are  made  by  the 
commanders-in-chief  of  the  belligerent  forces,  with 
the  express  or  presumed  consent  of  their  governments. 
They  may  be  transitory  in  character,  or  for  the  period 
of  the  war.  In  some  European  states  this  term  is  ap- 
plied to  an  agreement  entered  into  in  time  of  peace  for 
the  extradition  of  deserters  from  the  military  service. 

Capitulations  are  agreements  entered  into,  in  time 
of  war,  by  the  commanders  of  hostile  fleets  or  armies, 
for  the  surrender  of  a  fortified  place  or  fleet,  or  of  a 
defeated  army.  The  proposition  may  originate  with 
the  commander  of  the  place,  fleet,  or  army,  or  may  be 
in  the  nature  of  a  demand  made  upon  him  by  the  op- 


TREATIES  AND  CONVENTIONS.  175 

posite,  or  successful,  party.  Upon  either  of  these,  as  a 
basis,  the  capitulation  is  drawn  up,  the  terms  being 
modified,  and  the  conditions  of  surrender  determined, 
by  the  relative  strength  and  resources  of  the  bellig- 
erent parties.  Every  general  commanding  a  besieged 
place  or  separate  army  is  presumed  to  have  authority 
to  enter  into  arrangements  of  this  kind,  though  his 
power  may  be  restricted  in  some  way  by  the  sovereign 
authority  of  his  own  state.  In  such  an  event  his  action 
would  be  subject  to  the  approval  of  his  government, 
and  he  should  notify  his  opponent  that  such  is  the  case. 
Cartels  and  capitulations  are  drawn  up  in  the  same 
form  as  treaties.  The  latter  are  signed  first  by  the 
successful  party. 

7.  Objects  of  Treaties. — The  purpose  or  object  of  a 
treaty  is,  in  most  cases,  sufficiently  determined  by  its 
title.  There  are  some,  however,  which  require  addi- 
tional explanation. 

Treaties  of  Alliance. — These  are  agreements  under- 
taken by  two  or  more  states  with  a  view  to  secure 
concerted  action  for  a  certain  purpose.  They  may  be 
either  temporary  or  permanent  in  character,  and  are 
entered  into  by  states  which  are  menaced  by  a  com- 
mon danger,  or  whose  mutual  interests  are  threatened. 
They  are  based  upon  treaty  stipulations,  and,  however 
slight  the  concert  of  action  may  be,  the  resulting  alli- 
ance possesses  some  of  the  essential  features  of  a  league 
or  confederation.  The  terms  of  the  treaty  of  alhance 
determine  the  conditions  of  the  union.  Alliances  may 
be  equal  or  unequal,  offensive  or  defensive,  or  both. 
Allied  states  may  guarantee  the  continuance  of  a  cer- 
tain state  of  affairs  in  a  third  state,  or  in  one  of  the 
states  of  the  alliance.  They  are  defensive  when  their 


176  OUTLINES  OF  INTERNATIONAL  LAW. 

object  is  to  defend  a  common  interest  against  aggres- 
sion. Such  alliances  are  conservative  in  character,  and, 
by  aggregating  the  influence  and  resources  of  a  num- 
ber, aim  to  secure  respect  for  the  sovereign  rights  of 
each  of  the  component  states.  Offensive  alliances  are 
formed  for  the  purpose  of  attacking  a  state,  or  league 
of  states,  either  directly,  or  upon  the  occurrence  of  cer- 
tain conditions.  From  their  nature  they  are  a  con- 
stant menace  to  the  peace  of  nations.  The  leagues 
organized  to  resist  the  schemes  of  Louis  XIV.  and  Na- 
poleon, though  offensive  in  form,  were  really  defensive 
in  character,  and  tended  to  preserve  the  principle  of 
balance  of  power.  If  alliances  of  this  class  be  except- 
ed,  it  will  be  found  that  the  offensive  combinations  of 
which  history  has  preserved  the  records,  whatever  may 
have  been  the  real  or  assumed  necessity  of  their  organ- 
ization, and  however  wisely  they  may  have  been  ad- 
ministered, have  rarely  secured  the  prevalence  of  jus- 
tice, or  contributed  to  the  advancement  of  any  right- 
eous cause. 

Equal  Alliances  stipulate  for  the  same  or  similar 
contributions  of  force  or  resources,  or  for  a  propor- 
tionate contribution  based  upon  the  resources  of  each 
ally. 

Unequal  Alliances  are  those  in  which  the  contribu- 
tions stipulated  for  are  unequal  in  character  or  amount, 
or  in  which  the  allied  powers  enjoy  different  degrees 
of  consideration  or  influence.  Each  party  to  a  treaty 
of  alliance  is  the  sole  judge  as  to  when  the  case  con- 
templated by  the  treaty  exists,  or  the  action  or  inter- 
vention of  an  ally  is  required. 

Treaties  of  Guarantee. — These  compacts  are  acces- 
sory in  character,  and  are  entered  into  for  the  purpose 


TREATIES  AND  CONVENTIONS.  177 

of  securing  the  observance  of  a  treaty  already  exist- 
ing, or  the  permanence  of  an  existing  state  of  affairs. 
If  the  guarantee  covers  the  violation  of  any  and  every 
right,  the  treaty  of  guarantee  creates  an  alliance.  The 
term  guarantee,  in  its  most  general  sense,  includes  all 
treaties  the  purpose  of  which  is  to  secure  the  observ- 
ance and  execution  of  other  treaties,  or  the  mainte- 
nance of  certain  existing  conditions  for  a  limited  or 
unlimited  period  of  time.  The  conditions  of  the  guar- 
antee are  stated,  in  detail,  in  the  body  of  the  treaty. 
The  guarantor  state  decides  when  the  case  exists  which 
was  contemplated  in  its  guarantee.  It  is  required  to 
fulfil  the  conditions  stated  in  the  guarantee,  and  no 
more.  Any  change  in  the  guaranteed  treaty,  without 
the  consent  of  the  guarantor,  annuls  the  obligation. 
If  the  duty  or  aid  stipulated  is  inadequate  to  the  end 
proposed  in  the  guarantee  no  additional  duty  or  aid 
can  be  required. 

The  following  conditions  have  been  made  the  sub- 
jects of  guarantee : 

(a.)  The  political  existence  of  a  state,  its  sovereignty, 
or  independence,  or  its  existence  within  certain  territo- 
rial limits.1 

(5.)  The  permanent  neutrality  of  a  state,2  or  its  neu- 
trality under  certain  conditions.3 

(c.)  The  free  navigation  of  certain  rivers,4  and  the 

1  The  sovereignty  and  independence  of  Greece  was  guaranteed  by 
France,  Great  Britain,  and  Russia,  in  a  treaty  negotiated  at  London, 
in  1832.     The  Treaty  of  Paris,  of  1856,  contained  a  somewhat  simi- 
lar provision  respecting  the  Ottoman  empire. 

2  The  case  of  Switzerland  is  an  example  of  this. 

3  The  perpetual  neutralization  of  Belgium  was  guaranteed  by  the 
great  powers  in  the  treaty  of  April  19, 1839. 

4  Kliiber,  p.  204. 

12 


178  OUTLINES  OF   INTERNATIONAL  LAW. 

permanent  neutrality  of  works  of  improvement  upon 
them. 

(d.)  The  payment  of  loans.1  In  this  case  the  guaran- 
teeing powers  usually  become  sureties,  and  are  obliged 
to  make  good  any  default  of  their  principals  in  their 
stipulated  payments  of  principal  or  interest. 

Reciprocity  Treaties. — These  are  compacts  contain- 
ing stipulations  requiring  the  mutual  or  reciprocal  ob- 
servance of  certain  duties  or  obligations.  Most  treat- 
ies, to  a  certain  extent,  involve  reciprocal  action,  or 
the  recognition  of  mutual  rights  and  duties.  It  is 
only  when  a  treaty  involves  a  considerable  number  of 
such  obligations  that  it  receives  this  name.  Extradi- 
tion and  naturalization  treaties  are  reciprocal,  but  only 
on  the  subject  from  which  each  is  named.  Most  reci- 
procity treaties,  properly  so  called,  are  of  a  commer- 
cial character,  and  stipulate  for  specially  favorable 
terms  of  commercial  intercourse,  for  consular  privi- 
leges, for  the  admission  of  certain  products  of  each 
state  into  the  ports  of  the  other  at  special  rates  of 
duty,  or  without  the  payment  of  duty.  They  are  usu- 
ally entered  into  for  a  limited  period  of  time,  at  the 
end  of  which  they  expire,  or,  at  the  will  of  the  inter- 
ested states,  are  revised  and  extended  for  a  further  pe- 
riod. The  component  states  of  a  union  or  confederacy 
are  frequently  obliged,  by  the  constitution  or  treaty  of 
union,  to  grant  many  reciprocal  privileges  to  each  oth- 
er. This  was  the  case  in  the  Zollverein,  and  is  so  in 
the  existing  German  confederation.  According  to  the 
Constitution  of  the  United  States,  the  states  of  the 

1  In  the  Treaty  of  London,  in  1832,  France,  Great  Britain,  and 
Russia  guaranteed  a  loan  of  Otho,  the  Bavarian  prince  who  had 
been  created  by  them  King  of  Greece. 


TREATIES  AND  CONVENTIONS.  179 

Federal  Union  are  obliged  to  extradite  criminals  on  the 
demand  of  other  states,  to  accord  the  privileges  of  cit- 
izenship to  citizens  of  other  states,  and  to  give  full  faith 
to  the  properly  authenticated  records  and  judgments 
of  courts  in  the  other  states  of  the  Union. 

8.  Termination,  of  Treaties. — Treaties  cease  to  be 
binding — 

(a.)  At  the  end  of  a  stipulated  period,  or  at  a  date 
mutually  agreed  upon  by  the  signatory  parties. 

(b.)  When  the  act  stipulated  for  has  been  performed. 

(c.)  With  the  mutual  consent  of  the  contracting  par- 
ties, or  when  either  party  retains  the  right,  according 
to  the  terms  of  the  agreement,  to  terminate  it  upon 
due  notice ;  then  at  the  expiration  of  the  notice. 

(d.)  When  either  party  wilfully  violates  his  promises, 
or  ceases  to  be  bound  by  them,  or  fails  to  act  in  good 
faith  according  to  their  stipulations.  This  •will  be  the 
case  if  but  a  single  article  has  been  violated,  for  the 
agreement  was  to  observe  the  treaty  in  its  entirety. 
In  this  event  the  other  party  is  released  from  his  obli- 
gations, and  the  instrument  becomes  void ;  or  he  may 
insist  upon  a  compliance  with  the  stipulations  of  the 
treaty,  and  may  demand  indemnities  for  any  injury 
that  has  resulted  from  such  failure,  on  the  part  of  the 
defaulting  state,  to  observe  its  agreement.  As  treaties 
convert  imperfect  into  perfect  obligations,  the  injured 
party  may  resort  to  force  to  obtain  redress  for  the  in- 
jury which  he  has  sustained. 

Treaties  are  suspended,  and  by  some  authorities  are 
cancelled,  by  the  occurrence  of  war  between  the  con- 
tracting parties.  They  remain  suspended  during  the 
period  of  the  war,  from  the  outbreak  of  hostilities 
until  the  negotiation  of  a  treaty  of  peace.  The  least 


180  OUTLINES  OF  INTERNATIONAL  LAW. 

effect  of  war  is  to  interrupt  peaceful  relations.  It 
therefore  suspends  the  operations  of  all  treaties  not 
permanent  in  character,  or  which  do  not  contemplate 
a  state  of  war.  The  belligerent  states  resume  friendly 
relations  by  the  execution  of  a  treaty  of  peace,  and 
that  treaty  should  determine  to  what  extent  treaty 
relations  between  them  shall  be  resumed. 

The  following  treaties,  however,  are  not  suspended 
by  the  outbreak  of  war  between  the  contracting  par- 
ties: 

(1.)  Treaties  of  a  permanent  character,  executed  with 
full  knowledge  that  war  may  occur,  but  given  a  per- 
manent character  by  special  stipulation. 

(2.)  Treaties  entered  into  with  a  view  of  modifying 
or  amending  the  rules  of  International  Law. 

(3.)  Treaties  which  contemplate  the  occurrence  of 
war,  and  which  come  into  effect  only  at  the  out- 
break of  hostilities. 

9.  Rules  for  the  Interpretation  of  Treaties. — Treat- 
ies, like  laws,  are  drawn  in  general  terms,  and  in  their 
preparation  the  effort  is  made  to  frame  their  provis- 
ions in  such  terms  as  will  include  all  cases  that  may 
fairly  arise  under  them.  This  is  a  task  of  extreme 
difficulty.  As  the  parties  to  such  agreements,  more 
frequently  than  not,  speak  different  languages,  and 
represent  different,  and  sometimes  opposing,  legal 
and  political  systems,  it  is  not  at  all  remarkable  that 
causes  of  difference  should  arise  more  frequently  in  the 
execution  of  treaties  than  in  the  operation  of  munici- 
pal laws.  The  rules  of  interpretation  in  both  cases  are 
the  same ;  the  task  of  interpretation,  however,  is  vastly 
more  difficult,  in  the  case  of  treaties,  than  in  the  case 
of  contracts  and  municipal  laws.  The  attempt  to 


TREATIES  AND  CONVENTIONS. 

frame  rules  for  this  purpose  lias  been  frequently  made ; 
not  always,  however,  with  entirely  satisfactory  results. 
The  English  rules  of  Rutherforth  are  based  upon  the 
Common  Law  rules  of  interpretation  as  applied  to 
contracts.  Those  of  Yattel  and  Domat  are  based  upon 
the  rules  of  the  Roman  Law.  To  these  authors  the 
student  is  referred  for  a  general  discussion  of  the  sub- 
ject. 

The  following  rules  are  now  generally  sanctioned : 

(1.)  Interpretation  must  be  mutual.  Neither  party 
to  a  treaty  can  apply  his  own  rule  without  impair- 
ing, or  destroying,  the  binding  force  of  the  instru- 
ment. 

(2.)  A  clause  can  have  but  one  true  meaning. 

(3.)  The  words  of  a  treaty  are  presumed  to  have 
been  used  in  their  usual  sense  and  acceptation  at  the 
time  the  treaty  was  made,  unless  such  interpretation 
involves  an  absurdity. 

(i.)  Terms  technical  to  an  art  are  used  in  the  sense 
or  meaning  applied  to  them  in  that  art. 

(5.)  Clauses  inserted  at  the  instance,  or  for  the  ben- 
efit, of  one  party,  are  strictly  construed  against  the 
party  in  whose  favor  they  were  inserted.  It  is  his 
fault  if  he  has  not  expressed  himself  clearly. 

(6.)  Favorable  clauses  are  to  be  interpreted  liberally. 
Odious  clauses  are  to  be  interpreted  strictly.  Favora- 
ble clauses  are  those  granting  privileges  to  individuals 
or  states,  or  doing  away  with,  or  modifying,  restrictions 
upon  rights.  Harsh  clauses  are  those  depriving  indi- 
viduals, or  classes  of  persons,  of  rights  already  existing, 
or  abridging  such  rights  or  privileges,  or  rendering 
them  ineffective. 

(7.)  An  interpretation  which  renders  a  treaty  inop- 


182  OUTLINES  OF  INTERNATIONAL  LAW. 

erative  is  to  be  rejected.  Treaties  are  entered  into  for  • 
the  purpose  of  accomplishing  an  end,  or  of  attaining  an 
object.  Any  interpretation,  therefore,  which  renders 
a  treaty  wholly  or  in  part  inoperative,  is  absurd. 

(8.)  Special  clauses  are  to  be  preferred  to  general. 
Prohibitory  clauses  to  permissive;  and,  in  general, 
that  which  is  expressed  in  great  detail  is  to  be  pre- 
ferred to  that  which  is  stated  in  general  terms,  or  in 
less  particular  detail.  General  clauses  are  declaratory 
of  a  principle.  If  exceptions  exist,  they  are  accurately 
defined  and  stated  in  the  modifying  clauses  which  fol- 
low the  principal  clause.  The  broad  terms  of  a  gen- 
eral clause,  or  title,  cannot  be  appealed  to  as  authority 
against  the  precise  limitation  or  exemption  of  the  spe- 
cial clause. 

(9.)  In  the  interpretation  of  a  treaty  the  instrument 
must  be  regarded  as  an  organic  whole,  and  every  part 
must  be  considered  with  reference  to  every  other  part. 
Hence  earlier  clauses  are  explained  by  later  clauses  in 
the  same  treaty,  or  by  clauses  on  the  same  subject  in 
later  treaties.  Obscure  clauses  by  clearer  and  more 
precisely  stated  clauses  of  later  date.  As  regards  any 
particular  subject  of  stipulation,  the  whole  treaty  pol- 
icy of  two  states  on  that  subject  is  to  be  considered. 
Later  treaties  explain  and  modify  earlier  treaties  on 
the.  same  subject. 

Strict,  or  Restrictive  Interpretation,  consists  in  the 
precise  application  of  the  terms  of  an  instrument  to  a 
particular  case  arising  under  it.  It  involves  the  exclu- 
sion of  all  cases  not  covered  by  a  literal  rendering  of 
its  terms. 

Liberal,  or  Extensive  Interpretation,  consists  in  an  at- 
tempt to  so  construe  the  provisions  of  a  treaty  as  to 


TREATIES  AND   CONVENTIONS.  183 

include  within  its  operations  cases  similar  in  principle 
to  those  specifically  provided  for.  It  is,  in  substance, 
a  broad  and  comprehensive  rendering  of  the  clauses  of 
a  treaty,  regard  being  had  to  the  spirit  rather  than  the 
letter  of  the  instrument. 

In  connection  with  the  subject  of  interpretation  the 
following  definitions  are  given  of  terms  frequently  oc- 
curring in  treaties : 

Protocol. — This  is  a  word  of  Byzantine  origin,  and 
was  at  first  applied  to  the  first,  or  outer,  sheet  of  a  roll 
of  manuscript,  upon  which  was  written  or  impressed 
the  writer's  name,  the  date  of  the  instrument,  and  the 
title  of  the  minister  from  whose  office  it  issued.  As  a 
diplomatic  term  it  is  applied  to  the  rough  draft  of  a 
public  act,  and  also  to  the  formally  authenticated  min- 
utes of  the  proceedings  of  a  congress  or  conference. 
In  a  similar  sense  it  is  applied  to  the  preliminary  acts 
and  agreements  entered  into  by  ambassadors  in  the 
preparation  of  a  treaty. 

Recez. — This  term,  is  applied  to  the  act  of  a  diet,  or 
congress,  in  reducing  to  writing  the  result  of  its  delib- 
erations upon  a  particular  subject,  before  final  adjourn- 
ment. 

Separate  Articles.  —  These  are  clauses  added  to  a 
treaty  after  it  has  been  formally  signed  and  ratified. 
They  are  contained  in  a  separate  instrument,  and  are 
duly  authenticated,  but  are  construed  in  connection 
with  the  treaty  to  which  they  refer,  and  of  which  they 
form  a  part. 

The  most  Favored  Nation  Clause. — The  use  of  this 
clause  is  becoming  constantly  more  frequent  in  treat- 
ies, especially  in  those  of  a  commercial  character.  It 
commends  itself  by  its  convenience.  Its  effect  is  to 


184:  OUTLINES  OF  INTERNATIONAL  LAW. 

extend  its  scope  and  operation  to  cover  any  conces- 
sions of  privileges,  of  a  similar  character  to  those  stip- 
ulated for,  which  may  be  granted  in  the  future,  by 
either  party,  to  other  states,  or  to  their  citizens  or  sub- 
jects. The  clauses  of  later  treaties  granting  such  con- 
cessions in  this  way  become  an  integral  part  of  the 
earlier  treaty.  The  following  clause,  extracted  from 
a  recent  treaty  of  the  United  States,  illustrates  the 
principle  involved:  "If  either  party  shall  hereafter 
grant  to  any  other  nation,  its  citizens  or  subjects,  any 
particular  favor,  in  navigation  or  commerce,  it  shall 
immediately  become  common  to  the  other  party,  free- 
ly, when  freely  granted  to  such  other  nation,  or  on 
yielding  the  same  compensation  when  the  grant  is 
conditional.1 

References. — The  most  valuable  collection  of  treaties  in  the  Eng- 
lish language  is  that  of  Hertslet,  vols.  i.-iv.  This  work  should  be 
used  in  connection  with  "The  Map  of  Europe  by  Treaty,"  by  the 
same  author.  For  the  treaties  of  the  United  States,  see  "  Treaties 
and  Conventions  of  the  United  States,"  etc.,  1776-1889,  and  "The 
United  States  Statutes  at  Large  "  (annual  vols.),  1889-1891.  The 
Spanish  work  of  Calvo,  in  six  volumes,  contains  all  treaties  nego- 
tiated by  the  Latin  states  of  America  prior  to  1862.  There  are 
many  valuable  collections  of  treaties  to  which  the  Continental 
states  of  Europe  have  been  parties.  None  of  them  are  complete, 
however.  Jeukinsou's  collection  contains  most  English  treaties 
between  1648  and  1785.  See,  also,  G.  F.  De  Martens,  "Esquisse 
d'une  Histoire  Diplomatique  des  Traitgs,"  etc. ;  "  Recueil  cles  Priu- 
cipaux  Trait&s,"  etc.,  1761-1818,  by  G.  F.  De  Martens,  with  Murr- 
harcVs  continuation,  bringing  the  work  to  1860 ;  and  the  "  Corps 
Universel  Diplomatique"  of  J.  Dumont,  which,  with  its  additions, 
etc.,  covers,  with  more  or  less  fulness,  the  period  between  315  and 

1  "United  States  Statutes  at  Large,"  43d  Congress,  1873-1875, 


TREATIES  AND  CONVENTIONS. 

1738  A.D.  Rymer's  "Foedera,"  etc.,  contains  a  collection  of  treat- 
ies, between  England  and  other  powers,  between  the  years  1101 
and  1654.  A  supplement  to  this  work,  in  fifty-seven  volumes,  is 
preserved  in  the  British  Museum.  For  a  full  bibliography  of  this 
subject,  see  Kliiber,  pp.  424-437. 


CHAPTER  IX. 

THE   CONFLICT   OF   INTERNATIONAL   EIGHTS. 

1.  Causes  of  Conflict. — When  a  conflict  of  inter- 
national rights  arises,  as  is  the  case  whenever  one  state 
has  a  cause  of  difference  with  another,  it  is  customary 
for  the  state  whose  rights  have  been  denied,  or  tres- 
passed upon,  to  make  known  its  cause  of  complaint  to 
the  offending  state,  and  to  demand  that  justice  be  done 
for  the  wrong  that  has  been  committed.    The  urgency 
of  this  demand  is  always  proportional  to  the  gravity 
and  importance  of  the  injury  sustained.     The  motive 
of  some  violations  of  perfect  or  sovereign  rights  may 
be  so  obvious  and  unmistakable  that  no  explanations 
are  asked  for  by  the  offended  state,  and  resort  is  at 
once  had  to  forcible  measures  of  redress.    On  the  other 
hand,  the  offence  may  consist  in  the  violation  of  some 
minor  rule  of  comity  of  so  little  importance  that  a 
mere  exchange  of  diplomatic  notes  is  deemed  a  suffi- 
cient remedy.     Between  these  two  extremes  lie  the 
various  methods  of  settling  international  disputes. 

2.  Methods  of  Adjusting  International  Differences. 
— Those  most  frequently  resorted  to  are — 

(a.)  An  amicable  adjustment  of  the  difference  by  the 
interested  states. 

(5.)  Mediation. 

(<?.)  Arbitration. 

(1.)  The  Amicable  Adjustment  of  Disputes. — When- 
ever a  state  has  occasion  to  complain  of  the  action  of 


THE  CONFLICT  OF  INTERNATIONAL  RIGHTS. 

another  toward  itself,  or  toward  one  of  its  subjects,  a 
statement  of  the  particular  act  complained  of  is  pre- 
pared in  the  Foreign  Office  of  the  offended  state.  This 
statement  is  based  upon  all  the  ascertainable  facts  of 
the  case,  which  should  be  so  carefully  sifted  and  veri- 
fied, by  those  charged  with  their  investigation,  as  to 
make  it  impossible  to  question  their  substantial  accu- 
racy. This  is  necessary  because  it  is  impossible,  in 
international  affairs,  to  produce  evidence  in  the  ordi- 
nary legal  acceptation  of  the  term.  The  facts  thus 
ascertained  and  verified  are  next  examined  with  a  view 
to  ascertaining  whether  they  do,  or  do  not,  constitute 
a  violation  of  International  Law.  If  they  do  a  case  is 
prepared,  and  a  formal  demand  for  redress  is  made  and 
forwarded,  through  the  proper  diplomatic  channels,  to 
the  government  by  whom  the  injury  was  committed. 
In  support  of  this  case  reference  is  made  to  the  works 
of  standard  text-writers,  to  the  provisions  of  treaties, 
if  the  case  be  covered  by  them,  and  to  precedents  in 
international  intercourse,  especially  to  those  estab- 
lished by  the  offending  state  in  its  international  rela- 
tions. In  conclusion,  such  explanation,  disavowal,  or 
reparation  is  demanded  as  is  warranted  by  the  circum- 
stances of  the  case. 

If  that  government  be  clearly  in  the  wrong  it  ac- 
knowledges its  error,  or  disavows  the  act  of  its  sub- 
ordinate officials ;  and  offers  reparation,  accompanied 
by  such  explanation  and  apology  as  the  occasion  seems 
to  demand.  In  cases  where  such  a  remedy  is  suitable, 
money  indemnities  are  agreed  upon  and  paid  to  injured 
parties.  It  rarely  happens,  however,  that  either  state, 
in  a  particular  controversy,  is  either  entirely  right,  or 
entirely  wrong;  and  the  same  facts  are,  in  general, 


188  OUTLINES  OF  INTERNATIONAL  LAW. 

differently  regarded  by  each  of  two  interested  states. 
This  leads  to  controversial  discussion,  each  state  ad< 
vancing  arguments  and  citing  authorities  in  support 
of  that  view  of  the  case  which  it  believes  to  be  most 
nearly  in  accordance  with  justice.  A  correspondence 
of  this  kind  may  continue  through  a  period  of  years, 
and  rarely  leads  to  results  of  direct  or  immediate  im- 
portance. It  is  resorted  to  when  two  states  cherish 
different  views  as  to  the  justice  of  a  practice  main- 
tained or  advocated  by  one  and  denied  by  the  other. 
Such  was  the  long  controversy  between  England  and 
the  United  States  upon  the  right  of  search,  which  ex- 
tended over  a  period  of  more  than  fifty  years.  "When 
a  nation  complains  of  a  clear  and  decided  violation  of 
International  Law,  however,  and  no  dispute  exists  as 
to  the  facts  in  the  case,  reparation  on  the  part  of  the 
offending  state  is  usually  made  with  the  greatest 
promptness.1 

1  The  following  cases  are  cited  in  illustration  of  this  principle: 
Case  of  the  Laconia. — In  December,  1878,  the  American  whaling- 
ship  Laconia,  while  in  the  port  of  Zanzibar,  Africa,  was  boarded  by 
an  officer  of  the  British  ship  of  war  Leader,  Captain  Earl.  The 
boarding  party  took  from  the  Laconia  three  Africans,  claiming  that 
they  were  slaves,  Captain  Earl  justifying  his  act  under  the  treaty  of 
1862,  between  England  and  the  United  States,  for  the  suppression  of 
the  slave  trade.  The  matter  was  represented  to  the  British  govern- 
ment, by  whom  the  action  of  Captain  Earl  was  promptly  disapproved, 
and  the  regrets  of  Her  Majesty's  government  at  the  occurrence  were 
conveyed,  through  the  British  minister,  to  the  government  at  "Wash- 
ington ("  Foreign  Relations  of  the  United  States,"  1879,  pp.  415-432). 
Case  of  the  James  Bliss. — In  1872  the  American  schooner  James 
Bliss  was  seized,  in  British  territorial  waters,  by  the  Canadian  police 
cutter  Stella  Maris,  for  an  alleged  violation  of  the  fishery  laws. 
Soon  after  her  arrival  in  the  port  of  Gaspe  Basin  the  commanding 
officer  of  the  police  cutter  caused  the  Dominion  flag  to  be  hoisted 


THE  CONFLICT  OF  INTERNATIONAL  RIGHTS.         139 

Duty  of  Moderation. — In  this  method  of  adjustment, 
much  depends  upon  the  tact  and  moderation  shown 
by-  the  diplomatic  representatives  of  the  interested 
states  in  dealing  with  the  question  of  difference.  "  It 
not  infrequently  happens  that  what  is  at  first  looked 
upon  as  an  injury  or  an  insult  is  found,  upon  a  more 
deliberate  examination,  to  be  a  mistake  rather  than  an 
act  of  malice,  or  one  designed  to  give  offence.  More- 
over, the  injury  may  result  from  the  acts  of  inferior 
persons,  which  may  not  receive  the  approbation  of 
their  own  governments.  A  little  moderation  and  de- 
lay, in  such  cases,  may  bring  to  the  offended  party  a 
just  satisfaction,  whereas  rash  and  precipitate  measures 
may  often  lead  to  the  shedding  of  much  innocent  blood. 
The  moderation  of  the  government  of  the  United  States 
in  the  case  of  the  burning  of  the  American  steamboat 
Caroline,  in  1837,  by  a  British  officer,  led  to  an  amica- 
ble adjustment  of  the  difficulties  arising  from  a  viola- 
tion of  neutral  territory,  and  saved  both  countries  from 
the  disasters  of  a  bloody  war." '  The  cases  of  the  Creole 
and  of  what  is  known  as  the  Tahiti  affair  are  illustra- 
tions of  the  same  principle.  In  the  former  case  "  the 
feeling  in  the  southern  states  of  the  Union  was  strong 

above  the  American,  at  the  mast-head.  The  act  was  repeated  on  the 
following  day,  in  both  instances  against  the  protest  of  the  American 
consul.  The  facts  were  then  reported  to  the  Department  of  State 
in  Washington,  by  whom  they  were  brought  to  the  attention  of  the 
Governor-general  of  Canada  in  the  diplomatic  way.  Action  was  at 
once  taken  in  the  matter.  Lord  Dufferin,  the  governor  -  general, 
disavowing,  in  the  amplest  manner,  any  intention  of  showing  disre- 
spect to  the  American  flag.  He  also  announced  that  he  had  given 
most  particular  instructions  directing  the  discontinuance  of  the  prac- 
tice ("Foreign  Relations  of  the  United  States,"  1872,  pp.  200-208). 
1  Halleck,  vol.  i.,  pp.  413,  414. 


190  OUTLINES  OF  INTERNATIONAL  LAW. 

in  favor  of  war,  and  in  all  human  probability  would 
have  caused  it,  had  it  not  been  for  the  friendly  and 
courteous  spirit  in  which  the  American  and  British 
governments  carried  on  their  communications  on  the 
subject  with  each  other."  In  the  latter  case,  "the 
menacing  effects  of  popular  indignation  at  a  supposed 
gross  national  insult  were  averted  by  the  fairness  and 
temperance  with  which  one  government  made  its 
claim  for  redress,  and  by  the  readiness  on  the  other 
side  to  enter  into  a  calm  investigation  of  all  the  cir- 
cumstances of  the  case,  and  to  listen  to  reason  and  jus- 
tice rather  than  to  give  way  to  national  vanity.  Here 
we  have  three  occasions  in  which,  by  the  self-action  of 
the  parties  concerned,  by  a  cool  and  candid  examina- 
tion of  the  subject  in  dispute,  and  by  a  gentle  method 
of  terminating  differences,  three  of  the  greatest  coun- 
tries in  the  world  set  examples  of  forbearance  that 
deserve  to  be  recorded  as  precedents  worthy  of  imita- 
tion." ' 

Mediation. — Of  all  the  methods  hitherto  proposed 
for  preventing  international  strife  this  has  been  by  far 
the  most  effective  and  successful  in  its  practical  work- 
ing. It  consists,  in  substance,  of  a  reference  of  the 
cause  of  difference  to  a  disinterested  power,  who  sug- 
gests a  remedy,  or,  more  frequently,  proposes  an  ad- 
justment based  upon  such  mutual  concessions  as  will 
remove  the  cause  of  difference  or  irritation.  Media- 
tion may  be  asked  by  the  interested  states,  or  a  third 
power  may  tender  its  good  offices,  with  a  view  to  the 
maintenance  of  peace.  In  the  latter  case  the  friendly 

1  Sir  Edward  Creasy,  "First  Platform  of  International  Law," 
pp.  391,  392;  Abdy's  Kent,  p.  72. 


THE  CONFLICT  OF  INTERNATIONAL  RIGHTS. 

powers  tender  their  good  offices,  which,  may  be  accept- 
ed, or  not,  by  the  interested  states.  This  method  of 
adjusting  international  differences  was  frequently  re- 
sorted to  during  the  Middle  Ages,  especially  by  the 
pope,  and  there  are  numerous  instances  of  his  success- 
ful mediatory  interference  to  be  found  in  the  history 
of  Europe  during  that  period.  In  modern  times  the 
tendency  to  mediation  has  greatly  increased  in  force, 
and  but  few  cases  of  conflict  of  international  right 
have  arisen,  in  recent  times,  in  which  the  good  offices  of 
friendly  powers  have  not  been  tendered  to  the  litigant 
states.  Although  these  offers  have  not  always,  or  even 
usually,  been  accepted,  their  effect  has  been  beneficial, 
inasmuch  as  they  have  furnished  new  grounds,  or  rea- 
sons, for  the  settlement  of  existing  difficulties,  and  have 
suggested  methods  of  adjustment  which  had  not  oc- 
curred to  the  interested  parties. 

Arbitration.  —  Private  arbitration  consists  in  the 
reference  of  an  international  difference  or  dispute  to  a 
tribunal  composed  of  one  or  several  persons.  To  this 
tribunal  the  question  of  difference  is  submitted,  and  its 
decision,  when  rendered,  is  binding  upon  the  interested 
parties.  This  method  of  adjustment  does  not  afford 
so  prompt  a  remedy  as  can  be  obtained  through  media- 
tion, and  is  applicable  to  a  somewhat  different  class  of 
cases.  It  possesses  an  advantage  over  that  form  of 
adjustment,  however,  in  that  its  decisions  have  greater 
binding  force,  since,  if  rendered  in  good  faith,  they 
cannot  be  rejected  by  litigant  parties  as  can  offers  of 
mediation. 

The  composition  of  the  tribunal,  the  method  of  select- 
ing its  members,  the  time  and  place  of  meeting,  its  rules 
of  procedure,  and  the  precise  question  to  be  referred  to 


192  OUTLINES  OF  INTERNATIONAL  LAW. 

it  for  decision,  are  always  made  the  subject  of  a  pre- 
liminary treaty.  This  instrument  also  contains  a  sol- 
emn agreement,  on  the  part  of  the  interested  states,  to 
abide  by  the  decision  of  the  board  of  arbitration.  If 
a  person  of  sovereign  rank  is  selected  to  act  as  an  ar- 
bitrator, the  case  on  each  side  is  submitted  to  him, 
through  his  minister  of  foreign  affairs,  and  his  decision 
is  rendered  through  the  same  channel.  If  the  tribunal 
is  composed  of  several  members,  the  cases  are  submit- 
ted by  counsel,  whose  arguments  are  heard.  The  pro- 
visions of  the  Roman  Law  on  the  subject  of  arbitration 
may,  with  the  consent  of  the  interested  parties,  be  made 
obligatory  upon  the  tribunal.  A  more  liberal  code  of 
procedure  is  frequently  provided,  or  the  rules  of  the 
Roman  Law  are  somewhat  modified  in  their  applica- 
tion to  a  particular  case. 

In  reaching  a  decision  the  majority  rule  prevails,  un- 
less otherwise  precisely  stipulated  in  the  preliminary 
treaty,  and  the  decision  of  the  tribunal  binds  the  liti- 
gant states,  unless  its  validity  can  be  contested  upon 
any  one  of  the  following  grounds : 

(1.)  If  one  of  the  members  of  the  tribunal  has  not 
acted  in  good  faith ;  or  if  its  decision  be  tainted  with 
fraud. 

(2.)  If  any  of  the  conditions  of  the  preliminary  treaty, 
as  to  method  of  procedure,  time  and  place  of  meeting, 
have  not  been  complied  with ;  or  if  the  decision  has 
not  been  rendered  within  the  time  therein  stated. 

(3.)  If  the  tribunal  has  exceeded  its  jurisdiction;  or 
if  its  decision  goes  outside  the  case  submitted  to  it  for 
adjudication. 

3.  Mediation  and  Arbitration  Compared.  —  If  the 
cases  be  compared  in  which  these  methods  of  adjust- 


THE  CONFLICT  OF  INTERNATIONAL  EIGHTS.         ^93 

ing  international  disputes  have  been  successfully  ap- 
plied, it  will  be  seen  that  mediation  has  been  found 
most  useful  when  it  has  been  resorted  to  to  prevent 
threatened  hostilities,  especially  in  cases  involving  na- 
tional reputation,  or  when  considerable  national  feeling 
has  been  aroused.  It  has  also  been  found  a  successful 
method  of  terminating  an  existing  war,  especially  when 
a  disinterested  state  has  chosen  a  fitting  opportunity, 
during  an  interval  of  hostile  operations,  to  tender  its 
good  offices  to  the  belligerent  powers.  Arbitration, 
on  the  contrary,  "  implies  a  belief  on  the  part  of  both 
that  either  a  legal  or  quasi-legal  question  is  involved, 
and  that  each  is,  in  his  own  opinion,  right ;  or,  in  other 
words,  that,  when  the  state  of  facts  is  carefully  exam- 
ined, and  the  law  or  equitable  principle  accurately  ex- 
pounded, each  hopes  and  thinks  the  result  will  be  in 
his  own  favor.  A  bonafide  belief  in  the  justice  of  one's 
own  cause  is  an  essential  element  in  a  successful  arbi- 
tration. If  such  a  belief  is  absent,  there  can  be  no 
readiness  to  obey  the  award,  and  the  same  causes  of 
acrimony  exist  after  the  award  as  before  it." '  "  Ar- 
bitration is  an  expedient  of  the  highest  value  for  ter- 
minating international  controversies ;  but  it  is  not 
applicable  to  all  cases  or  under  all  circumstances,  and 
the  cases  and  circumstances  to  which  it  is  not  applica- 
ble do  not  admit  of  precise  definition.  Arbitration, 
therefore,  must  of  necessity  be  voluntary ;  and  though 
it  may  sometimes  be  a  moral  duty  to  resort  to  it,  can- 
not be  commanded,  in  any  form,  by  what  is  called  the 
positive  law  of  nations."  * 

4.  Measures  of  Redress,  Involving  the  Use  of  Force, 

1  Amos,  "Science  of  Law,"  p.  348. 

8  Sir  Montague  Bernard,  Letter  to  London  Times,  Oct.  18, 1873. 
13 


194  OUTLINES  OF  INTERNATIONAL  LAW. 

but  Falling  Short  of  War.  —  Between  the  -peaceable 
methods  of  adjusting  international  disputes,  which 
have  already  been  described,  and  an  actual  resort  to 
force,  lie  certain  measures  of  redress  of  a  more  serious 
character.  These  methods  presume  the  existence  of  a 
cause  of  difference  between  two  states,  justifying  a  de- 
parture from  the  normal  relations  existing  between 
the  nations  in  time  of  peace,  and  the  measures  adopted 
at  times  involve  the  use  of  violence  or  force ;  but,  even 
when  exercised  to  an  extreme  degree,  they  fall  far  short 
of  open  or  public  war.  They  are  resorted  to  only  wThen 
redress  has  been  asked  for  and  denied,  and  are  justi- 
fiable only  when  the  offending  nation  acts  with  full 
knowledge,  and  persists  in  doing  injustice  after  its  at- 
tention has  been  repeatedly  drawn  to  its  wrongful  acts. 

The  measures  of  redress  involving  the  use  of  forcible 
or  hostile  methods  are  susceptible  of  classification  un- 
der one  of  two  heads — retorsion  and  reprisals. 

Retorsion  consists  in  an  application  of  the  same  rule 
of  conduct  in  our  relations  with  another  state  as  is  ap- 
plied, by  that  state,  in  its  relations  with  us.  It  is  an 
application  of  the  law  of  retaliation  in  international 
affairs.  If  a  state  imposes  unjust  restrictions  upon 
aliens  residing  within  its  territories,  the  state  whose 
subjects  they  are  is  justified  in  imposing  the  same,  or 
equivalent,  restrictions  upon  the  subjects  of  the  offend- 
ing state  who  are  resident  within  its  borders.  If  it 
refuse  privileges  usually  granted  by  states  to  ambassa- 
dors and  consuls,  the  offended  states  are  justified  in  a 
similar  refusal  of  privileges  to  its  consuls  and  diplo- 
matic representatives. 

The  field  within  which  the  principle  of  retorsion 
may  be  applied,  already  very  extensive,  is  constantly 


THE  CONFLICT  OF  INTERNATIONAL  RIGHTS.        195 

increasing.  This  state  of  affairs  is  due  to  the  fact 
that  the  commercial  relations  of  states  are  increasing 
in  intricacy  in  direct  proportion  as  they  increase  in 
extent  and  amount,  giving  rise  to  frequent  conflicts 
between  the  business,  or  internal,  policy  of  particular 
states,  and  their  external,  or  international,  policy.  Illus- 
trations of  this  tendency  are  to  be  found  in  the  expe- 
rience of  states  which  derive  a  large  portion  of  their 
public  revenue  from  customs  duties.  If  some  article 
of  native  production  falls  in  price  on  account  of  for- 
eign competition,  an  attempt  is  made  to  remedy  the 
difficulty  by  increasing  the  duty  upon  the  correspond- 
ing foreign  article.  This  is  felt  at  once  in  the  state  in 
which  the  particular  article  is  produced,  or  manufact- 
ured, and  retaliatory  measures  are  resorted  to  with  a 
view  of  compelling  the  removal  of  the  trade  restriction. 

Acts  of  retorsion  must  be  confined  to  the  class  of 
imperfect  rights,  except  when  resorted  to  by  way  of 
retaliation  for  similar  or  identical  acts  on  the  part  of 
a  foreign  state.  The  denial  of  a  perfect  right  amounts 
to  a  just  cause  for  war. 

Reprisals. — Reprisals  consist  in  the  forcible  seizure 
or  detention  of  property  belonging  to  an  offending 
state,  or  to  its  citizens,  which  may  be  found  within  the 
territory  of  the  offended  state,  or  on  the  high  seas. 
The  things  seized  are  held  subject  to  the  termination 
of  the  controversy.  If  it  be  settled  amicably,  the 
property  is  restored,  and  reparation  is  sometimes  made 
for  the  delay  and  damage  that  have  resulted  from  the 
seizure.  If  the  dispute  results  in  war,  the  property 
seized  is  condemned  as  prize. 

Reprisals  differ  from  retorsion  not  only  in  kind  but 
in  degree.  Retorsion  is  resorted  to  when  imperfect 


196  OUTLINES  OF   INTERNATIONAL  LAW. 

rights  have  been  trespassed  upon,  or  when  there  has 
been  a  failure  to  observe  the  rules  of  comity.  Reprisals 
are  resorted  to  when  perfect  rights  have  been  drawn 
in  question,  or  denied,  or  when  there  has  been  an  ab- 
solute refusal  of  justice.  They  are  acts  of  violence, 
and  may  be  regarded  by  the  state  toward  which  they 
are  directed  as  amounting  to  a  declaration  of  war. 
They  are  justifiable  only  when  there  has  been  an  ab- 
solute denial  of  justice,  so  deliberate  and  intentional 
on  the  part  of  the  offending  state  as  to  constitute  a 
sufficient  cause  for  war.  If  war  does  not  result,  it  is 
because  the  offended  state,  appreciating  the  hardship 
and  suffering  that  are  involved  in  a  resort  to  actual 
hostilities,  chooses  to  regard  the  offence  as  technical, 
by  undertaking  to  redress  its  wrong  by  similar,  though 
less  violent,  measures.  In  recent  times  they  have  been 
less  frequently  resorted  to  than  formerly,  especially 
by  the  more  powerful  states  of  Europe  and  America 
in  their  occasional  controversies  with  each  other.  The 
present  tendency  is  to  resort  to  them  only  when  the 
injured  state  is  considerably  more  powerful  than  its 
adversary,  and  generally  with  the  effect  of  obtaining 
the  desired  redress  without  recourse  to  war.  "  Much 
of  what  appears  in  the  older  and  even  in  some  modern 
books  upon  the  subject  of  reprisals  has  become  anti- 
quated. Special  reprisals,  or  reprisals  in  which  letters 
of  marque  are  issued  to  the  persons  who  have  suffered 
at  the  hands  of  a  foreign  state,  are  no  longer  made ; 
all  the  reprisals  that  are  now  made  may  be  said  to  be 
general  reprisals,  carried  out  through  the  ordinary  au- 
thorized agents  of  the  state,  letters  of  marque  being 
no  longer  issued." ' 

1  Hall,  p.  312,  note. 


THE  CONFLICT  OF  INTERNATIONAL  RIGHTS.        197 

References. — Three  methods  of  adjusting  international  disputes 
have  been  discussed  in  this  chapter — 1.  Amicable  adjustment ;  2. 
mediation;  3.  arbitration.  Under  the  head  of  amicable  adjust- 
ment, the  following  references  are  suggested :  Hall,  p.  306 ;  Hal- 
leek,  vol.  i.,  chap,  xiv.,  §§  1-3 ;  Heffter,  liv.  ii.,  chap,  i.,  §§  106-108 ; 
Vattel,  book  ii.,  chap,  xviii.,  §§  324-326 ;  Creasy,  pp.  390,  391 ;  Phil- 
limore,  vol.  iii.,  chap,  i.,  pp.  2-5.  For  mediation,  see  Boyd's 
Wheaton,  pp.  97-99,  and  pp.  345,  706 ;  Halleck,  vol.  i.,  chap,  xiv., 
§§5-6;  Heffter,  liv.  ii.,  chap.  i.,§  107;  Creasy,  pp.  390-392 ;  Kliiber, 
chap,  iii.,  §§  318-321 ;  Vattel,  book  ii.,  chap,  xviii.,  §  328.  Under  the 
head  of  arbitration  see  Hall,  p.  306  ;  Manning,  pp.  499-504 ;  Hal- 
leck, vol.  i.,  chap,  xiv.,  §§  7, 8 ;  Boyd's  Wheaton,  §  288 ;  Vattel,  book 
ii.,  chap,  xviii.,  §§  329-334 ;  Wildman,  vol.  i.,  p.  186 ;  Heffter,  §  109 ; 
Kliiber,  §318;  Creasy,  p.  83,  and  pp.  394-397, 698 ;  Phillimore,  vol. 
iii.,  pp.  2-15;  G.  F.  De  Martens,  vol.  ii.,  §  176.  For  the  schemes 
which  have  been  suggested  for  the  peaceable  settlement  of  inter- 
national differences,  see  Manning,  chap.  xiv. ;  Amos,  "  Science  of 
Law,"  pp.  345-359 ;  Amos,  "Political  and  Legal  Remedies  for 
War;''  Bernard,  "Neutrality  of  England,"  pp.  494-506;  Wheaton, 
"  History  of  the  Law  of  Nations,"  pp.  750-758 ;  Laveleye,  "  La 
Guerre  en  Europe  et  Arbitrage ;"  Abbot,  "  Essays  on  Modern  Inter- 
national Law,"  essay  v.,  "The  Primacy  of  the  Great  Powers;" 
essay  vi.,  "  The  Evolution  of  Peace." 


CHAPTER  X. 

WAR. 

•'  The  choler  and  manhood  that  you  have,  score  it,  in  God's  name, 
upon  the  fronts  of  your  enemies,  but  stain  not  the  honor  of  a  sol- 
dier by  outraging  unarmed  innocence.  Live  upon  your  means  like 
soldiers,  and  not  by  pilfering  and  spoiling  like  highway  robbers. 
This  if  you  do  not  you  shall  ever  be  infamous,  and  I  with  such  help 
shall  never  be  victorious." ' — GUSTAVUS  ADOLPHUS. 

1.  The  Right  of  Redress. — As  there  is  no  superior 
authority  to  which  a  state  can  appeal  for  redress  when 
any  of  its  sovereign  rights  have  been  trespassed  upon, 
denied,  or  impeded  in  their  exercise,  it  is  compelled,  as 
a  last  resort,  to  redress  its  own  injury,  or  wrong.    This 
it  does  by  a  suspension  of  all  friendly  relations  with 
the  offending  state,  and  by  a  resort  to  such  acts  of 
hostility  as  are  authorized  by  the  laws  of  war.    Again, 
in  the  performance  of  its  duty  of  protecting  its  citi- 
zens and  their  property  from  acts  of  domestic  violence, 
a  government  sometimes  finds  its  ordinary  legal  ma- 
chinery inadequate  to  the  purpose,  and  is  compelled  to 
make  use  of  the  public  armed  force  in  order  to  compel 
obedience  to  the  law,  to  quell  insurrection  and  rebel- 
lion, or  to  enforce  respect  for  its  neutral  obligations. 
In  one  case  the  state  uses  force  against  another  state ; 
in  the  other  its  force  is  directed  against  a  portion  of 
its  own  population. 

2.  Definition  and  Purpose  of  War. — War  may  there- 

1  Abbot,  "Essays  on  Modern  International  Law,"  p.  162. 


WAR.  199 

fore  be  defined  as  an  armed  contest  between  states  or 
parts  of  states.  It  is  undertaken  by  one  state  against 
another,  for  the  purpose  of  compelling  an  offending 
state  to  fulfil  its  obligations  as  a  party  to  Interna- 
tional Law.  It  is  undertaken  against  persons  within 
its  territory  for  the  purpose  of  compelling  obedience 
to  its  municipal  laws.  When  its  object  is  attained,  in 
either  case,  war  itself  becomes  unlawful  and  must  cease. 

3.  Rightfulness  of  War. — With  the  inherent  right- 
fulness  of  war  International  Law  has  nothing  to  do. 
War  exists  as  a  fact  of  international  relations,  and,  as 
such,  it  is  accepted  and  discussed.  In  defining  the 
laws  of  war,  at  any  time,  the  attempt  is  made  to  form- 
ulate its  rules  and  practices,  and  to  secure  the  gen- 
eral consent  of  nations  to  such  modifications  of  its 
usages  as  will  tend  toward  greater  humanity,  or  will 
shorten  its  duration,  restrict  its  operations,  and  hasten 
the  return  of  peace  and  the  restoration  of  the  belliger- 
ent states  to  their  normal  relations. 

•i.  Classification  of  Wars. — Wars  are  classified  ac- 
cording to  the  point  of  view  from  which  they  are  ex- 
amined or  discussed.  They  are  classified  according  to 
their  causes  into  wars  of  opinion,  religious  wars,  icars 
of  independence,  of  conquest,  or  subjugation.  In  a  mil- 
itary sense  they  are  either  offensive  or  defensive.  In 
a  political  sense  they  are  classified  into  external  and 
internal  wars.  Internal  wars  are  further  subdivided 
into,  1st.  Civil  wars,  in  which  the  belligerent  parties 
are  distributed  over  a  large  part  of  the  territory  of  a 
state ;  the  object  being  to  secure  a  change  of  govern- 
ment or  laws,  but  not  at  the  expense  of  national  unity. 
2d.  Rebellions  or  insurrections,  in  which  a  portion  of 
the  population  of  a  state  rises  against  the  central  gov- 


200  OUTLINES  OF  INTERNATIONAL  LAW. 

eminent,  sometimes  with,  the  design  of  securing  a  sep- 
aration from  it,  sometimes  with  a  view  to  resist  the 
execution  of  harsh  or  oppressive  laws,  or  measures  of 
administration. 

5.  The  Belligerent  Parties. — The  parties  to  a  war 
are  called  belligerents.  Their  operations  must  be  car- 
ried on  in  accordance  with  certain  accepted  usages, 
which  are  sanctioned  by  all  nations  under  the  name 
of  the  Laws  of  War. 

Whenever  a  state  occupies  the  position  of  a  bellig- 
erent, it  is  vested  with  all  the  rights,  and  charged  with 
all  the  obligations,  incident  to  a  state  of  war.  The 
parties  to  an  internal  war  are  also  called  belligerents. 
They  acquire  belligerent  rights  so  soon  as  the  central 
government  decides  to  resort  to  warlike  methods  in 
order  to  quell  the  insurrection.  The  recognition  of 
such  rights  by  the  central  government,  or  by  foreign 
powers,  in  no  way  involves  the  recognition  of  the  re- 
bellious government  as  a  separate  political  organiza- 
tion. It  only  implies  that  the  laws  of  war  are  to 
prevail  in  the  military  operations  undertaken  for  the 
purpose  of  suppressing  the  rebellion,  enforcing  the 
laws,  and  restoring  the  supremacy  of  the  national  gov- 
ernment. In  wars  with,  savages,  and,  to  a  certain  ex- 
tent, in  wars  with  nations  which  do  not  acknowledge 
the  sanctions  of  International  Law,  it  is  impossible  for 
a  state  to  be  guided  in  all  respects  by  the  laws  of  war. 
This  is  so  because  one  of  the  belligerents,  having  a  dif- 
ferent standard  of  morals,  or  being  without  such  a 
standard,  declines  to  recognize  the  rules  of  civilized 
warfare.  This  does  not  absolve  a  civilized  state  from 
its  obligation  to  observe  those  laws ;  it  rather  strength- 
ens it,  and  it  will  be  justified  in  resorting  to  retaliatory 


WAR.  201 

measures  only  when  such  measures  are  rendered  abso- 
lutely necessary  by  the  barbarous  or  inhuman  conduct 
of  its  enemy. 

6.  Right  of  Declaring    War,  in   whom   Vested? — 
The  right  of  declaring  war  is  an  essential  attribute 
of  sovereignty.     It  is  the  act  of  the  supreme  govern- 
mental authority  of  a  state,  and  is  limited  in  its  exer- 
cise, if  at  all,  only  by  its  constitution  or  fundamental 
law.     In  former  times  this  power  was  delegated  to 
colonial  governments,  and  even  to  commercial  compa- 
nies ;  at  present,  however,  such  delegation  of  authority 
is  no  longer  recognized,  and  the  positive  power  of  de- 
claring war  is  held  to  be  lodged  exclusively  in  the 
sovereign  authority  of  a  state.     This  does  not  prevent 
distant  dependencies  from  recognizing  the  fact  of  war, 
if  declared  by  another  power ;  and  they  may  resist  in- 
vasion, or  even  carry  the  war  into  an  enemy's  country. 

7.  Causes  of  War.  —  Although  it  falls  within  the 
province  of  International  Law  to  determine  how  war 
between  civilized  states  shall  be  carried  on,  and  with 
what  formalities  it  shall  begin  and  end,  it  is  impossible 
to  deduce  from  the  history  of  international  relations 
any  precise  rule  for  determining  what  fact,  or  facts, 
shall  constitute  a  just  cause  for  Avar.     It  has  been  said 
that  a  sovereign  right  of  a  state  can  be  invaded,  or 
denied,  only  at  the  risk  of  war,  and,  in  so  far  as  Inter- 
national Law  is  concerned,  a  state  is  legally  justified 
in  regarding  the  denial  of  such  a  right  as  a  sufficient 
cause  for  war.     The'  question  of  determining  whether 
a  particular  cause  of  offence  is,  or  is  not,  sufficient  to 
justify  war,  is  strictly  internal  in  character,  and  con- 
cerns the  offended  state  alone.    "With  the  government 
of  that  state  rests  the  entire  legal  and  moral  responsi- 


202  OUTLINES  OF  INTERNATIONAL  LAW. 

bility  of  decision.  The  efficient  check  upon  a  nation 
in  this  respect  mustjbe  found  in  international  public 
opinion  rather  than  in  International  Law. 

Responsibility  for  a  Resort  to  War. — "While  it  is 
technically  true  that  a  violation  or  denial  of  a  perfect 
right  is  regarded  as  a  just  cause  for  war,  it  is  true 
only  because  no  other  remedy  is  provided  for  the  vio- 
lation, by  a  state,  of  a  rule  of  International  Law.  As 
there  is  no  authority  above  a  sovereign  state  to  which 
it  can  appeal,  it  is  of  necessity  compelled  to  redress, 
by  its  own  means,  any  injuries  that  it  may  receive 
from  another  state.  Not  every  denial  of  a  perfect 
right  results  in  war,  even  when  justice  has  been  de- 
manded and  refused.  Those  in  whose  hands  the  gov- 
ernment is  must  consider  whether  the  injury  that  has 
been  received  is  sufficient,  in  amount  or  importance,  to 
counterbalance  the  evils  that  are  involved  in  a  resort 
to  war.  The  chance  of  success  must  be  considered,  as 
well  as  the  ability  of  the  state  to  bear  the  burden  of 
long-continued  hostilities. 

Moral  Considerations  Involved. — Certain  moral  con- 
siderations are  also  involved  in  the  decision,  the  re- 
sponsibility for  which  no  government  can  evade.  "  If 
reparation  can  otherwise  be  obtained,  a  nation  has  no 
necessary,  and  therefore  no  just,  cause  for  war :  if  there 
be  no  probability  of  obtaining  it  by  arms,  a  govern- 
ment cannot,  with  justice  to  their  own  nation,  embark 
it  in  war ;  and  if  the  evils  of  resistance  should  appear, 
on  the  wThole,  greater  than  those  of  submission,  wise 
rulers  will  consider  an  abstinence  from  a  pernicious 
exercise  of  right  as  a  sacred  duty  to  their  own  sub- 
jects, and  a  debt  which  every  people  owes  to  the  great 
commonwealth  of  mankind,  of  which  they  and  their 


WAR.  203 

enemies  are  alike  members.  A  war  is  just  against  a 
wrongdoer  when  reparation  for  wrong  cannot  other- 
wise be  obtained ;  but  it  is  then  only  conformable  to 
all  the  principles  of  morality  when  it  is  not  likely  to 
expose  the  nation  by  whom  it  is  levied  to  greater  evils 
than  it  professes  to  avert,  and  when  it  does  not  inflict, 
on  the  nation  which  has  done  the  wrong,  sufferings 
altogether  disproportioned  to  the  extent  of  the  injury. 
When  the  rulers  of  a  nation  are  required  to  determine 
a  question  of  peace  or  war,  the  bare  justice  of  their 
case  against  the  wrongdoer  never  can  be  the  sole,  and 
is  not  always  the  chief,  matter  on  which  they  are  mor- 
ally bound  to  exercise  a  conscientious  deliberation. 
Prudence  in  conducting  the  affairs  of  their  subjects  is 
in  them  a  part  of  justice." ' 

8.  Declaration  of  War,  Ancient  and  Modern  Rule. — 
In  former  times  war  was  declared  with  great  formali- 
ties. This  is  no  longer  the  case,  the  formal  declaration 
having  ceased  when  the  necessity  for  its  existence  had 
passed  away.  When  the  relations  of  two  states  be- 
come strained  the  fact  is  at  once  known  throughout 
the  civilized  world,  and  the  subjects  of  the  unfriendly 
powers  have  sufficient  time  to  arrange  their  business 
affairs,  and  to  accommodate  their  legal  relations  to  the 
changed  conditions.  When  all  attempts  at  peaceable 
adjustment  have  failed,  diplomatic  intercourse  ceases, 
ministers  are  withdrawn,  and  the  military  and  naval 
forces  of  the  belligerents  are  mobilized  and  placed 
upon  a  war  footing.  So  far  as  the  opposing  nations 
are  concerned,  no  further  declaration  is  now  necessary. 


1  Mackintosh's  Collected  Works,  p.  430,  cited  by  Creasy,  "First 
Platform  of  International  Law,"  pp.  362,  363. 


204  OUTLINES  OF  INTERNATIONAL  LAW. 

Official  Notification  of  an  Intended  Resort  to  War. — . 
Although  the  practice  of  making  formal  declarations 
no  longer  obtains,  a  state  which  assumes  a  belligerent 
attitude  toward  another  is  obliged  to  give  public  no- 
tice of  its  intention  in  each  of  the  following  cases : 
1st.  To  its  own  subjects ;  2d.  To  neutrals.  This  notice 
is  frequently  given  by  proclamations,  which  contain  a 
statement  of  the  cause  of  the  war,  and  of  the  purposes, 
or  motives,  for  which  it  is  undertaken.  They  also  con- 
tain the  date  after  which  a  state  of  hostility  will  le- 
gally exist.  This  is  a  matter  of  great  importance,  in 
that  it  enables  neutral  powers  to  give  effect  to  their 
neutrality  laws,  to  issue  proclamations  of  neutrality, 
and  to  fix  the  date  upon  which  their  neutral  obliga- 
tions become  binding.  ISTo  declaration,  or  notice,  is  re- 
quired from  the  state  which  acts  on  the  defensive. 

9.  Effect  of  War  upon  Treaties  of  Alliance,  Guar- 
antee, and  Subsidy. — Treaties  of  alliance,  of  subsidy, 
and  of  guarantee,  made  in  anticipation  of  war,  come 
into  effect  the  moment  war  is  declared  by,  or  against, 
one  of  the  allied  states.  Each  state  which  is  a  party 
to  a  treaty  of  alliance  must  decide  for  itself  whether 
the  case  contemplated  by  the  treaty  exists  or  not.  If 
its  decision  be  affirmative,  its  obligations  as  an  ally  go 
into  effect  immediately.  If  it  decides  in  the  negative, 
its  action  cannot  be  constrained  by  any  method  short 
of  reprisals  or  war.  The  other  allies,  however,  may 
look  upon  its  failure  as  a  violation  of  treaty  stipula- 
tion, which  they  may  regard  as  a  just  cause  for  war. 
A  treaty  of  subsidy  obliges  a  state  to  grant  such  aid 
in  troops,  supplies,  or  money  as  it  may  have  stipulated 
to  furnish,  either  on  formal  notification,  or  when  a  par- 
ticular state  of  affairs  exists  which  was  contemplated 


WAR.  205 

by  the  treaty.  In  this  case,  as  in  that  of  an  alliance, 
each  contracting  party  decides  for  itself  whether  the 
case  exists  which  is  contemplated  by  the  treaty,  and 
each  is  fully  responsible  for  its  decision.  The  aid 
agreed  upon  is  furnished  strictly  in  accordance  with 
the  provisions  of  the  treaty  of  subsidy,  and  the  obliga- 
tion incurred  is  fulfilled  when  the  stipulated  duty  has 
been  performed.  If  the  assistance  proves  inadequate 
to  the  purpose,  or  if  it  be  impossible  of  fulfilment,  no 
obligation  rests  upon  the  subsidizing  state  to  render 
other  or  further  service  of  the  same  kind. 

Treaties  of  guarantee,  in  so  far  as  they  relate  to  war, 
usually  consist  in  an  obligation,  assumed  by  one  or 
more  states,  to  enforce  respect  for  the  neutrality  of  a 
third  state,  or  to  assure  the  existence  of  such  a  state 
within  certain  territorial  limits.  They  become  effec- 
tive when  the  neutrality  of  the  protected  state  is  threat- 
ened from  any  quarter,  or  when  the  guaranteed  terri- 
tory is  invaded,  or  menaced  with  invasion.  Subsidiary 
treaties  may  also  exist,  providing  in  detail  for  interfer- 
ence in  either  of  these  cases.  If  such  treaties  exist,  they 
must  be  strictly  observed  in  making  good  the  guarantee. 

The  effect  of  war  upon  treaties  generally  has  already 
been  discussed.1 

10.  Effects  of  a  State  of  War.— The  direct  effects  of 
a  state  of  war  are :  1st.  To.  place  both  the  belligerent 
states  and  their  subjects  in  a  condition  of  non-inter- 
course with  each  other.  2d.  Each  citizen  of  one  state 
becomes  the  legal  enemy  of  every  citizen  of  the  other. 
This  state  is  legal,  not  actual,  for  no  subject  of  either 
state  can  take  the  life  of  his  enemy,  or  make  captures 

1  Ante,  pp.  179, 180. 


206  OUTLINES  OF  INTERNATIONAL  LAW. 

on  land  or  sea,  or  do  any  hostile  act,  without  the 
express  authority  of  his  government.  Commercial 
intercourse  between  subjects  of  the  belligerent  states 
becomes  illegal.  Contracts  and  other  legal  obliga- 
tions are  suspended  during  the  continuance  of  hos- 
tilities, and  a  similar  rule  is  applied  to  partnerships 
and  other  business  arrangements.  Shares  in  the  public 
stocks  of  either  state,  which  are  held  in  the  territory 
of  the  other,  are  not  confiscated  or  forfeited.  Interest 
ceases  to  be  paid  at  the  outbreak  of  hostilities,  but  is 
resumed  at  the  peace,  the  interest  accrued  during  the 
war  becoming  payable  at  its  close. 

Citizens  of  one  belligerent  power  in  the  territory  of 
the  other  at  the  declaration  of  war  may  be  required  to 
depart,  or  may  be  permitted  to  remain,  at  the  discre- 
tion of  the  state  in  whose  territory  they  are  resident.1 
The  latter  course  has  been  pursued  in  most  recent  wars, 
and  is  the  one  most  in  accordance  with  the  dictates  of 
humanity.  This  question  has  frequently  been  made 
the  subject  of  treaty  stipulation.  It  is  now  generally 
recognized,  however,  that  such  persons  are  not  to  be 
made  prisoners  of  war,  and,  if  ordered  to  depart,  they 
are  to  be  given  a  reasonable  time  for  removal  with 
their  property  and  effects.  Subjects  of  the  enemy  who 
are  permitted  to  remain  in  a  belligerent  state  may  be 
subjected  to  such  special  police  regulation  and  super- 
vision as  may  be  deemed  necessary  by  the  government 
for  its  security.  For  reasonable  cause  they  may  be 
required  to  depart,  or  may  be  forcibly  expelled.  If 
they  give  aid  or  information  to  the  enemy,  or  to  their 
own  government,  they  become  subject  to  the  laws  of 

1  Boyd's  Wheaton,  p.  366,  note. 


WAR.  207 

war,  and  may  be  treated,  according  to  the  nature  of 
their  offence,  as  prisoners  of  war,  or  as  traitors  or  spies, 
and  may  be  punished  accordingly. 

The  Property  of  Enemy's  Subjects. — The  property 
of  enemy's  subjects  found  within  the  territory  of  a 
state  at  the  outbreak  of  war  is  not  confiscable.  Debts 
due  an  enemy's  subject  are  suspended  during  the  war, 
but  resume  their  obligatory  character  at  its  termina- 
tion. "  The  right  of  the  original  creditor  to  sue  for 
the  recovery  of  his  debt  is  not  extinguished  by  the 
war,  and  revives  in  full  force  on  the  restoration  of 
peace." l  "  The  debts  due  by  American  citizens  to  Brit- 
ish subjects  before  the  war  of  the  Revolution,  and  not 
actually  confiscated,  were  judicially  considered  as  re- 
vived, together  with  the  right  to  sue  for  their  recovery, 
on  the  restoration  of  peace  between  the  two  countries. 
The  commercial  treaty  of  1794:  also  contained  an  ex- 
press declaration  that  it  was  unjust  and  impolitic  that 
private  contracts  should  be  impaired  by  national  dif- 
ferences ;  with  a  mutual  stipulation  that  neither  the 
debts  due  from  individuals  of  the  one  nation  to  indi- 
viduals of  the  other,  nor  shares,  nor  moneys  which 
they  may  have  in  the  public  funds,  or  in  public  or  pri- 
vate banks,  shall  ever,  in  any  event  of  war  or  national 
differences,  be  sequestered  or  confiscated."  * 

"  Some  writers  have  drawn  a  distinction  between 
debts  due  from  a  subject  of  one  belligerent  to  a  sub- 
ject of  the  other,  and  debts  due  from  a  belligerent  state 
to  subjects  of  the  other.  It  is  said  that  there  exists  a 
right  to  confiscate  the  former,  while  the  latter  are  to  be 


Boyd's  Wheaton,  p.  366. 

Ibid.,  p.  367;  Dallas,  vol.  ill,  pp.  4,  5,  199-285. 


208  OUTLINES  OF  INTERNATIONAL  LAW. 

exempt.  The  Confederate  States  acted  upon  this  dis- 
tinction, and  confiscated  all  property  and  all  rights, 
credits,  and  interests  held  within  the  confederacy  by 
or  for  any  alien  enemy,  except  public  stocks  and  secu- 
rities. Lord  Kussell  strongly  protested  against  this, 
as  being  an  act  as  unusual  as  it  was  unjust." 1 

"  But  this  is  the  only  instance  in  recent  times  of  such 
measures  having  been  adopted,  and  it  is  an  example 
that  seems  unlikely  to  be  imitated.  The  confiscation 
of  private  debts  of  any  sort,  besides  exposing  the  state 
doing  so  to  retaliation,  only  cripples  the  enemy  in  a 
very  indirect  way.  It  has  no  effect  at  all  on  the  mili- 
tary or  naval  operations  of  the  war,  and  cannot,  there- 
fore, be  justified  on  any  principle." " 

THE  LAWS  or  WAR. 

11.  Character  and  Tendency  of  the  Laws  of  War. — 
That  department  of  International  Law  which  treats  of 
the  manner  in  which  war  shall  be  carried  on  by  bellig- 
erents, on  land  and  sea,  is  called  the  Laws  of  War. 
These  laws  are  constantly  changing,  to  adapt  them  to 
the  ever-changing  conditions  of  modern  warfare.  The 
tendency  of  these  changes  is,  and  always  has  been, 
in  the  direction  of  greater  humanity  and  liberality. 
Harsh  usages  are  modified,  cruel  practices  become  ob- 
solete, or  are  abandoned  by  treaty  or  general  consent, 
and  new  methods  are  constantly  suggested  for  dimin- 
ishing the  inevitable  hardships  of  war.  This  improve- 
ment is  observable  in  all  departments ;  it  is  most  re- 
markable, however,  in  the  treatment  of  individuals, 

1  "Parliamentary  Papers,"  1862,  "Correspondence  Relating  to 
Civil  War,"  p.  108.  *  Boyd's  Wheaton,  p.  3CS,  note. 


WAR.  209 

combatant  and  non-combatant,  and  in  the  greater  con- 
sideration shown  to  the  wounded  and  to  prisoners  of 
war.  There  has  been  the  least  progress  in  the  rules 
relating  to  private  property  on  land  and  sea.  The 
Declaration  of  Paris  restrains  the  states  who  were  par- 
ties to  it  from  capturing  private  property  at  sea,  except 
enemy  goods  in  enemy  ships  and  contraband  of  war. 
The  practice  of  privateering  has  declined,  probably 
never  to  be  revived.  In  war  on  land  pillage  is  sternly 
forbidden,  but  private  property  may  still  be  taken  by 
way  of  requisition.  Contributions  are  still  recognized, 
and  certain  kinds  of  property  may  be  captured  and  de- 
stroyed, or  regarded  as  booty.  There  are  no  indica- 
tions, at  present,  that  belligerents  will  voluntarily  sur- 
render any  of  the  rights  which  they  now  exercise  over 
private  property  on  land.  In  the  few  instances  in 
which  such  property  has  been  exempted  from  capture 
or  requisition  its  immunity  has  been  due  to  the  fact 
that,  in  those  instances,  rapidity  of  movement  was  an 
essential  condition  of  success,  which  could  not  have 
been  attained  had  the  force  employed,  in  the  particular 
undertakings,  been  compelled  to  depend  for  its  subsist- 
ence upon  the  slow  and  uncertain  methods  of  requisi- 
tioning supplies  from  an  unwilling  or  hostile  popula- 
tion. The  recommendations  of  the  conferences  at 
Brussels  and  St.  Petersburg  illustrate  these  tenden- 
cies. The  declarations  on  the  subject  of  combatants 
and  non-combatants,  the  treatment  of  wounded  men 
and  of  prisoners  of  war,  are  plain  and  positive  in  char- 
acter, and  commend  themselves  to  all  nations.  Those 
on  the  subject  of  private  property  are  brief,  obscure, 
and  unsatisfactory,  reflecting  but  too  clearly  the  opin- 
ions upon  that  subject  of  those  who  framed  them. 
14 


210  OUTLINES  OF  INTEKNATIONAL  LAW. 

12.  Subjects  Treated  of  in  the  Laws  of  War. — The 
Laws  of  "War  have  chiefly  to  do  with  the  following 
subjects : 

(a.)  The  forces  that  may  be  employed  in  war,  on 
land  and  sea. 

(b.)  The  methods  of  carrying  on  war. 

(c.)  The  instruments  that  may  be  employed. 

(d.)  The  rules  regulating  captures  on  land  and  sea. 

(e.)  The  treatment  of  the  public  and  private  prop- 
erty of  the  enemy. 

(/.)  The  treatment  of  non-combatants  in  the  thea- 
tre of  war. 

(</.)  The  treatment  of  captured  persons,  or  prisoners 
of  war. 

(h.)  The  government  of  occupied  territory. 

(i.)  The  intercourse  of  belligerents  in  war. 

13.  The  Amount  and  Kind  of  Force  that  may  be  Used 
in  War.  —  International  Law  recognizes  the  fact  of 
war,  and  sanctions  a  resort  to  hostile  methods  to  ob- 
tain redress  for  an  international  wrong.     It  does  not 
sanction  or  approve  acts  of  indiscriminate  violence, 
however,  nor  the  use  of  force  in  excess  of  the  precise 
amount  needed  to  redress  the  injury,  or  its  continued 
use  after  the  legitimate  purpose  of  the  war  has  been 
accomplished. 

Legal  Effects  of  a  State  of  War  upon  the  Subjects  of 
the  Belligerent  States. — It  has  already  been  seen  that 
the  existence  of  a  state  of  war  makes  each  subject  of 
one  belligerent  the  legal  enemy  of  every  subject  of  the 
other.  An  individual  domiciled  in  a  belligerent  state 
becomes  an  enemy,  his  property  becomes  enemy  prop- 
erty, and,  as  an  enemy,  he  ceases  to  have  a  legal  status 
in  the  courts  of  the  hostile  state.  This  is  a  consequence 


WAR.  211 

of  the  relation  of  the  belligerent  states  to  each  other. 
The  states  are  at  war,  and  so  the  individual  units  who 
compose  them  must  share  the  same  hostile  relation. 
This  state  of  individual  hostility,  however,  is  legal,  not 
actual,  and  does  not  of  itself  justify  a  subject  of  either 
state  in  taking  the  life  of  an  enemy,  in  making  capt- 
ures, or  in  doing  any  act  of  hostility  whatsoever. 
Upon  this  point  the  international  usage  is  plain.  No 
individual  is  permitted  to  commit  any  hostile  act,  save 
in  self-defence,  without  the  positive,  express  authoriza- 
tion of  his  government.  Whoever  undertakes  an  act 
of  hostility  without  such  authorization  does  so  at  his 
peril,  and  if  captured  is  not  entitled  to  the  protection 
of  the  laws  of  war. 

Who  may  Lawfully  Carry  on  War. — In  general 
war  is  carried  on  by  the  regular  armed  force  of  each 
belligerent  power.  The  character  of  that  force,  and 
its  composition,  are  internal  questions,  to  be  deter- 
mined by  the  municipal  law  of  every  state.  In  addi- 
tion to  its  regular  armed  force  a  state  may  call  into 
its  service,  for  the  period  of  the  war,  or  for  a  shorter 
term,  such  additional  forces  as  it  may  deem  necessary 
to  prosecute  the  war  successfully.  This  force  may 
consist  of  conscripts,  of  volunteers,  or  of  such  militia 
or  reserve  forces  as  are,  or  may  be,  provided  for  by  its 
constitution  and  laws.  This  force  must,  in  general,  be 
organized  and  disciplined,  commanded  by  responsible 
officers,  and  should  either  be  uniformed,  or.  required  to 
wear  some  distinguishing  mark  or  badge  by  which  its 
members  may  be  recognized  and  known. 

"  Partisans  are  soldiers,  armed,  and  wearing  the  uni- 
form of  their  army,  but  belonging  to  a  corps  which 
acts  detached  from  the  main  body,  for  the  purpose  of 


212  OUTLINES  OF  INTERNATIONAL    LAW. 

making  inroads  into  the  territory  occupied  by  the  en- 
emy. If  captured  they  are  entitled  to  all  the  privi- 
leges of  the  prisoner  of  war." ' 

A  Levee  en  Masse  is  a  general  rising  of  the  popula- 
tion of  a  state  to  resist  an  invader.  Such  risings  usu- 
ally take  place  with  the  consent,  and  by  the  direction, 
of  the  government  of  the  invaded  state,  and  there  may 
or  may  not  be  time  for  the  movement  to  be  organized 
and  regulated  by  the  government.  In  such  cases  the 
question  arises :  Are  the  individual  members  of  such  a 
body  entitled,  if  captured,  to  be  treated  as  prisoners 
of  war?  The  weight  of  opinion  is  that  they  are, 
so  long  as  they  observe  the  laws  of  civilized  war  in 
conducting  their  operations.  Two  views  have  been 
entertained  upon  this  subject.  One,  maintained  by 
states  having  large  standing  armies,  and  whose  mili- 
tary operations  are  more  likely  to  be  offensive  than 
defensive,  holds  that  such  risings  are  unauthorized. 
This  view  is  largely  influenced  by  self-interest.  The 
other,  held  by  states  maintaining  small  military  estab- 
lishments, and  so  more  concerned  with  defensive  than 
offensive  operations,  justifies  them  on  the  grounds  of 
necessity  and  self-defence.  The  latter  view  is  now 
held  by  the  greater  number  of  states.  Of  those  which 
maintain  the  former  opinion  the  two  most  important, 
Prussia  and  Eussia,  have  each,  at  different  times,  au- 
thorized such  risings  during  invasions  of  their  terri- 
tories.2 

At  the  Brussels  conference,  in  1874,  a  proposition 

1  General  Orders  No.100  of  the  U.  S.  War  Department,  Series  of  1863. 

2  Prussia  in  1807,  during  the  Napoleonic  wars.     Russia  in  1700, 
and  again  in  1812.     On  the  former  occasion  to  resist  Charles  XII. , 
and  on  the  latter  to  resist  Napoleon. 


WAR.  213 

was  submitted  requiring  such  general  levies  to  con- 
form to  certain  conditions,  in  order  to  secure  for  them 
the  protection  of  the  laws  of  war.  These  conditions 
were: 

"  Art.  IX.  1.  That  they  have  at  their  head  a  person 
responsible  for  his  subordinates. 

"  2.  That  they  wear  some  distinctive  badge  recog- 
nizable at  a  distance. 

"  3.  That  they  carry  arms  openly ;  and, 

"  4.  That,  in  their  operations,  they  conform  to  the 
laws  and  customs  of  war.  In  those  countries  where 
the  militia  form  the  whole  or  a  part  of  the  army  they 
shall  be  included  under  the  denomination  of  army. 

"Art.  X.  The  population  of  a  nonroccupied  terri- 
tory, who,  on  the  approach  of  the  enemy,  of  their  own 
accord  take  up  arms  to  resist  the  invading  troops,  with- 
out having  had  time  to  organize  themselves  in  con- 
formity with  article  IX.,  shall  be  considered  as  bel- 
ligerents, if  they  respect  the  laws  and  customs  of 
war." l 

The  effect  of  these  rules  is  made  to  depend  upon 
the  meaning  attached  to  the  term  "occupied  terri- 
tory," as  used  in  a  previous  article.  It  is  defined  in 
article  I.  to  be  "  territory  actually  placed  under  the 
authority  of  the  hostile  army.  And  the  occupation  is 
declared  to  extend  to  those  territories  where  this  au- 
thority is  established  and  can  be  exercised."2  The 
construction  of  the  term  is  left  to  the  belligerent  in- 
vader, and,  so  long  as  the  views  held  upon  the  subject 
of  occupation  are  so  divergent  as  they  are  at  present, 


"Proceedings  of  Brussels  Conference,"  1874,  articles  ix.  and  x. 
Ibid. ,  article  i. 


214  OUTLINES  OF  INTERNATIONAL  LAW. 

it  is  extremely  unlikely  that  the  rules  of  the  confer- 
ence, humane  as  they  are  in  many  respects,  will  receive 
general  international  sanction. 

The  term  guerilla  is  applied  to  persons  who,  acting 
singly  or  joined  in  bands,  carry  on  operations  in  the 
vicinity  of  an  army  in  the  field  in  violation  of  the 
laws  of  war.  They  wear  no  uniform,  they  act  with- 
out the  orders  of  their  government,  and  their  opera- 
tions consist  chiefly  in  the  killing  of  picket  guards  and 
sentinels,  in  the  assassination  of  isolated  individuals 
or  detachments,  and  in  robbery  and  other  predatory 
acts.  As  they  are  not  controlled  in  their  undertak- 
ings by  the  laws  of  war,  they  are  not  entitled  to  their 
protection.  If  captured,  they  are  treated  with  great 
severity,  the  punishment  in  any  case  being  propor- 
tioned to  the  offence  committed.  Their  operations 
have  no  eifect  upon  the  general  issue  of  the  war,  and 
only  tend  to  aggravate  its  severity.  Life  taken  by 
them  is  uselessly  sacrificed,  and  with  no  corresponding 
advantage.1 

14.  Forces  that  may  not  be  Used  in  War. — In  carry- 
ing on  military  operations  against  a  belligerent,  a  state 
may  not  use,  as  a  part  of  its  armed  force,  any  persons 
or  corps  that  are  not,  or  cannot  be,  subjected  to  mili- 
tary discipline,  or  who  cannot  be  restrained  from  com- 
mitting acts  of  cruelty  in  violation  of  the  laws  of  war. 
This  restriction  prohibits  the  use  of  bodies  of  troops 
composed  of  individuals  of  savage  or  semi  -  civilized 
races,  whose  cruel  instincts  lead  to  the  perpetration  of 
all  sorts  of  barbarities.  A  general  who  finds  the  force 
of  his  enemy  composed  of  such  elements  is  justified  in 

1  Halleck,  vol.  ii.,  p.  7;  also  p.  8,  note. 


WAR.  215 

resorting  to  retaliatory  methods  to  compel  its  discon- 
tinuance.1 

15.  Wars  with  Savages. — Civilized  states,  in  carrying 
on  necessary  wars  with  barbarous  races,  or  against  na- 
tions which  are  partly  civilized,  but  who  do  not  under- 
stand, and  so  fail  to  observe,  the  laws  of  war,  have 
peculiar  duties  and  responsibilities  toward  such  oppo- 
nents.    Their  irregular  and  barbarous  usages  should 
be  carefully  studied,  and  the  operations  undertaken 
against  them  should  be  so  planned  and  arranged  as  to 
render  it  impossible  for  serious  violation  of  the  laws  of 
war  to  occur.     The  task  is  not  one  of  serious  or  partic- 
ular difficulty.     Barbarous  nations  yield  only  to  supe- 
rior force  or  superior  cunning.     They  violate  the  rules 
of  civilized  warfare  chiefly  in  their  cruel  treatment  of 
wounded  and  unwounded  prisoners,  and  in  their  ten- 
dency to  indiscriminate  slaughter,  pillage,  and  destruc- 
tion while  passing  through  inhabited  districts.      To 
remedy  this,  the  forces  employed  against  them  should 
be  sufficient  in  amount  to  accomplish  the  legitimate 
purpose  of  the  war  as  expeditiously  as  possible.    Forces 
inferior  in  strength  to  the  enemy  should  never  be  em- 
ployed.   "Wounded  men  should  not  be  permitted  to  fall 
into  their  hands ;  straggling  should  be  rigidly  prohibit- 
ed ;  small,  isolated  parties  should  not  be  employed  be- 
yond the  lines  of  the  army,  and  the  tactical  units  of 
the  invading  force,  in  all  marches  and  military  opera- 
tions, should  be  required  to  keep  within  supporting 
distance  of  each  other. 

16.  Forces  Employed  at  Sea. — In  conducting  naval 


1  To  this  class  belong  the  Bashi-Bazouks,  employed  by  Turkey 
and  some  of  the  Cossack  mounted  forces  in  the  service  of  Russia. 


216  OUTLINES  OF  INTERNATIONAL  LAW. 

operations  and  in  effecting  captures  at  sea,  a  state 
makes  use  of  its  public  armed  vessels,  manned  by  the 
officers  and  men  of  its  regular  naval  establishment. 
Its  naval  force  may  be  increased,  both  in  sliips  and 
men,  by  methods  similar  to  those  resorted  to  to  in- 
crease its  military  strength.  It  may  also  make  use  of 
privateers. 

Privateers  are  armed  vessels,  commanded  by  private 
persons,  who  receive  a  commission  from  a  belligerent 
government  authorizing  them  to  make  captures  of  en- 
emy ships  and  goods  on  the  high  seas.  These  com- 
missions are  called  Letters  of  Marque. 

Letters  of  Marque  and  Reprisal  are  commissions  of 
a  somewhat  similar  character,  which  were  formerly 
issued  to  private  persons,  authorizing  them  to  make 
captures  by  way  of  reprisal,  and  in  satisfaction  for 
some  injury  done  them  by  an  offending  state.  The 
practice  is  now  obsolete. 

Although  the  practice  of  privateering  is  still  sanc- 
tioned by  International  Law,  it  seems  hardly  probable 
that  it  will  be  extensively  resorted  to  in  future  wars. 
Its  defence  has  been  that  it  enabled  a  state  which, 
from  policy  or  want  of  means,  maintained  a  small 
standing  navy,  to  make  a  great  and  sudden  increase 
in  its  naval  force  at  the  outbreak  of  war.  This  in- 
crease, however,  was  attended  with  serious  disadvan- 
tages. The  force  of  privateers  could  only  be  used  to 
effect  captures  of  unarmed  merchant  ships.  It  was 
never  available  for  general  naval  operations,  and  the 
damage  done  to  the  enemy,  however  great,  was  at  best 
but  indirect,  and  did  not  have  the  effect  of  weakening 
his  military  power.  The  belligerent  employer  of  pri- 
vateers incurred  the  same  responsibility  for  captures 


WAR.  217 

made  by  these  cruisers  as  it  did  for  those  made  by  its 
public  armed  vessels,  while  its  control  over  their  offi- 
cers and  creAvs  was,  at  best,  but  feeble  and  indirect. 
It  had  but  little  security  against  their  aggressions  upon 
neutral  rights,  while  it  was  absolutely  responsible  for 
acts  done  by  them  in  their  exercise  of  the  right  of 
search  upon  neutral  vessels.  As  neutral  rights  stead- 
ily increase,  and  are  more  and  more  strongly  insisted 
upon  by  neutral  nations,  the  exercise  of  belligerent 
rights  against  them  becomes  constantly  more  difficult, 
involving  a  knowledge  of  International  Law  which  is 
rarely  possessed  by  the  commanding  officers  of  private 
armed  vessels,  and  presenting  questions  of  the  greatest 
intricacy  and  difficulty,  which  require  in  their  decision 
the  fullest  knowledge  of  the  rights  and  responsibilities 
of  belligerents  and  neutrals.  For  these  reasons  the 
practice  of  privateering,  which  had  always  been  re- 
garded with  disfavor,  has  within  the  last  half  century 
been  much  less  frequently  resorted  to  than  formerly. 
Those  states  whose  policy  it  is  to  maintain  small  naval 
establishments  in  time  of  peace  find  it  possible  to  in- 
crease them,  at  the  outbreak  of  war,  by  a  resort  to 
methods  similar  to  those  made  use  of  in  increasing 
their  land  forces.  Ships  are  purchased  or  chartered 
by  the  government,  and  the  vessels  thus  acquired  are 
placed  under  the  command  of  regular  naval  officers. 
Over  this  force  the  control  of  the  government  is  abso- 
lute and  complete.  It  possesses  the  advantage  that  it 
can  be  used  in  all  sorts  of  maritime  undertakings,  and 
is  not  restricted  in  its  operations  to  the  capture  of  un- 
armed merchant  vessels. 

The  practice  of  privateering  has  been  very  much  re- 
stricted by  the  operation  of  the  rules  of  the  Declara- 


218  OUTLINES  OF  INTERNATIONAL  LAW. 

tion  of  Paris,  which  will  be  discussed  under  the  head 
of  maritime  capture. 

17.  Effect  of  Modem  Inventions,  and  of  Improved 
Methods  of  Attack  and  Defence. — The  discovery  of 
new  methods  of  attack  ,and  defence,  and  the  improve- 
ments which  have  been  made  in  the  range  and  effi- 
ciency of  artillery  and  small  arms  since  the  middle  of 
this  century,  have  served  to  mark  an  epoch  in  the  his- 
tory of  modern  war.     Standing  armies  and  navies  are 
now  maintained  at  a  point  in  numbers,  training,  and 
efficiency  never  before  reached,  or  even  attempted,  and 
at  an  expense  which  absorbs  no  inconsiderable  portion 
of  the  revenues  of  most  modern  states.     These  causes 
combined  have  so  increased  the  cost  and  destructive- 
ness  of  war  as  to  render  its  occurrence  less  frequent, 
and  to  materially  shorten  its  duration,  while,  by  re- 
ducing the  time  during  which  operations  are  carried 
on,  and  territory  occupied  by  invading  armies,  they 
have  contributed  powerfully  to  restrict  its  most  inju- 
rious effects. 

18.  Methods  of  Carrying  on  War. — With  the  stra- 
tegical and  tactical  methods  resorted  to  by  trained  and 
disciplined  armies  in  their  operations  against  each  oth- 
er, International  Law  has  but  little  to  do.     Such  op- 
erations must  be  carried  on  in  accordance  with  the 
principle  that  no  forcible  measures  against  an  enemy 
which  involve  the  loss  of  human  life  are  justifiable 
which  do  not  bear  directly  upon  the  object  for  which 
the  war  is  undertaken,  and  which  do  not  materially 
contribute  to  bring  it  to  an  end.     International  public 
opinion  severely  judges  useless  and  unnecessary  ope- 
rations, and  sharply  criticises  mistakes  and  blunders 
which  might  have  been  avoided  by  a  reasonable  exer- 


WAR.  219 

cise  of  foresight  and  skill,  and  fixes  the  responsibility 
of  error,  in  just  proportions,  upon  the  governments 
which  authorize  such  measures  and  the  generals  who 
execute  them. 

19.  Rule  of  Good  Faith  •    Use  of  Deceit. — No  meas- 
ures can  be  resorted  to  against  an  enemy  in  war  which 
involve  a  breach  of  good  faith.     An  attack  cannot  be 
condemned,  or  complained  of,  because  it  partakes  of  the 
character  of  a  surprise,  because  it  is  the  duty  of  a  bel- 
ligerent to  exercise  such  due  vigilance  as  will  render 
such  measures  abortive.     Deceit,  in  the  form  of  circu- 
lating false  information  in  order  that  it  may  fall  into 
the  hands  of  the  enemy,  is  justifiable,  because  it  is  the 
enemy's  duty  to  Aveigh  carefully  the  sources  from  which 
he  receives  intelligence.     The  services  of  traitors  and 
deserters  may  be  accepted,  and  the  employment  of 
spies  for  the  purpose  of  obtaining  information  is  legit- 
imate, but  no  person  can  be  compelled  to  act  as  a  spy. 
The  poisoning  of  wells  and  springs  is  prohibited,  as  it 
ever  has  been  since  the  laws  of  war  came  into  exist- 
ence.    The  food  and  water  supply  of  a  besieged  place 
may  be  shut  off,  however,  with  a  view  to  hasten  its 
surrender. 

20.  The  Attack  of  Places. — In  the  attack  of  places 
a  distinction  is  made  between  forts  or  fortified  places, 
and  what  are  called  open,  or  undefended  towns.     The 
latter,  if  they  offer  no  resistance,  cannot  be  attacked. 
On  the  contrary,  it  is  the  first  duty  of  the  command- 
ing general  of  the  force  occupying  them  to  prevent 
pillage,  and  to  insure  public  order  and  the  protection 
of  private  property.    Fortified  places  may  be  taken  by 
open  assault,  or  may  be  reduced  by  regular  siege  oper- 
ations.    If  an  open  assault  be  attempted,  no  notice  is 


220  OUTLINES  OF  INTERNATIONAL  LAW. 

given,  as  surprise  in  such  an  operation  is  an  essential 
condition  of  success.  The  very  fact  of  war  is  a  suffi- 
cient notice  to  the  non-combatant  inhabitants  of  such 
places  that  an  attack  is  at  least  a  probable  contingen- 
cy. If  they  continue  their  residence  it  is  presumed 
that  they  do  so  with  full  knowledge  that  the  place 
may  become  the  centre  of  active  military  operations. 

It  should  be  remembered  in  this  connection,  how- 
ever, that  peace  is  the  normal  state  of  mankind,  and 
that  other  than  military  conditions  now  prevail  in  the 
location,  growth,  and  development  of  cities  and  towns. 
This  fact  must  be  recognized  by  belligerent  states,  and 
by  their  generals  commanding  in  the  field.  There  is 
scarcely  a  fortified  place  now  in  existence  which  does 
not  contain  a  large  contingent  of  non-combatant  pop- 
ulation, composed,  in  great  part,  of  persons  whose  cir- 
cumstances are  such  as  not  to  permit  them  to  change 
their  residence  at  will.  This  fact  is  now  considered, 
in  the  fortification  of  important  centres,  by  placing 
the  defensive  works  beyond  the  range  of  siege  artil- 
lery. The  claims  of  these  defenceless  persons  should 
constantly  be  borne  in  mind  by  all  those  who  have  to 
do  with  siege  operations,  the  duty  of  consideration 
falling  with  equal  force  upon  besiegers  and  besieged. 
No  measures  directed  against  a  besieged  place  are  jus- 
tifiable which  are  calculated  to  increase,  unnecessarily, 
the  hardships  of  their  already  distressing  condition. 
The  improved  methods  of  conducting  siege  operations 
make  it  possible  to  neutralize  fortified  places  by  close 
investment,  and  to  reduce  them  by  restricting  the  at- 
tack to  the  defensive  works  alone.  Commanding  offi- 
cers of  such  places  are  not  justified  in  persisting  in 
the  defence  when  the  burden  of  such  defence  begins 


WAR.  221 

to  bear  with,  deadly  effect  upon  their  non-combatant 
population. 

Duty  of  a  Commanding  Officer  of  a  Besieged  Place 
in  the  Matter  of  Surrender. — The  questions  of  defence 
in  the  case  of  a  garrisoned  fort  and  a  fortified  town 
are  by  no  means  the  same.  Duty  may  require  a  com- 
mander in  the  former  case  to  resist  to  the  last ;  in  the 
latter  considerations  of  humanity  enter  into  the  prob- 
lem of  defence,  and  great  weight  must  be  attached  to 
them  when  the  question  of  surrender  is  presented  to 
him  for  decision. 

In  former  times  there  were  instances  in  which  the 
commanding  officer  of  a  besieged  place  incurred  some 
penalty  by  protracting  his  defence  beyond  the  time 
when  such  defence  could  be  maintained  with  any  rea- 
sonable chance  of  success.  This  is  no  longer  the  case. 
The  defence  of  a  place  is  a  question  over  which  a  be- 
sieger has  no  control.  The  commanding  officer  of  the 
besieged  place  may  therefore  protract  his  defence  so 
long  as  any  military  advantage  accrues  to  his  own 
government  by  so  doing.  When  no  such  considera- 
tions are  involved,  however,  and  the  question  of  de- 
fence is  limited  to  the  place  itself,  a  commander  is  jus- 
tified in  continuing  it  so  long  as  any  hope  of  success 
remains.  "When,  in  his  opinion,  it  can  no  longer  be 
hopefully  maintained,  any  further  sacrifice  of  life  is 
unwarranted,  and  it  becomes  his  duty  to  surrender. 
This  is  a  duty  which  he  owes  to  his  country,  and  to 
the  men  under  his  command,  and  not  to  the  enemy. 
If  his  force  is  sufficient  to  justify  him  in  such  an  un- 
dertaking, it  is  proper  for  him  to  make  the  attempt  to 
cut  his  way  out.  Whenever  he  surrenders  he  is  enti- 
tled to  demand,  for  himself  and  for  his  command,  the 


222  OUTLINES  OF  INTERNATIONAL  LAW. 

rights  of  prisoners  of  war,  and  his  enemy  is  not  justi- 
fied in  refusing  to  grant  him  such  rights,  still  less  in 
threatening  to  deny  quarter  to  himself  or  his  garrison. 
On  the  other  hand,  should  he  blindly  refuse  to  surren- 
der when  defence  is  no  longer  possible,  and  so  compel 
his  enemy  to  take  the  place  by  assault,  he  cannot  com- 
plain of  any  loss  of  life  that  may  legitimately  ensue, 
nor  can  he  expect  his  antagonist,  in  the  heat  of  an  at- 
tack, to  recognize  his  tender  of  surrender,  when  the 
time  for  such  tender  has  passed  away.1 

21.  Use  of  the  Enemy's  Uniform  and  Flag. — It  is 
forbidden  in  war  on  land  to  make  use  of  the  enemy's 
flag  for  purposes  of  deceit.    It  is  also  forbidden  to  use 
the  enemy's  uniform  except  wTith  some  distinguishing 
mark,  sufficiently  striking  in  character  to  attract  at- 
tention at  a  distance.     On  the  sea  the  national  flag  of 
a  public  armed  vessel  must  be  displayed  before  an  en- 
gagement begins,  or  a  capture  is  made.     These  rules 
are  based  on  the  fact  that  flags  and  uniforms  are  used 
for  the  purpose  of  determining  the  national  character 
of  troops  in  the  field.     A  violation  of  these  rules  indi- 
cates a  want  of  good  faith,  a  quality  equally  obliga- 
tory in  peace  and  war. 

22.  Giving  and  Receiving  Quarter,  and  Treatment 
of  Individuals  of  the  Enemy  j  Forbidden  Practices. — 
A  belligerent  cannot  refuse  to  give  quarter,  nor  can 
he  announce  his  intention  to  give  no  quarter,  except 

1  The  Duke  of  Wellington,  in  a  despatch  to  Mr.  Canning  bearing 
date  of  Feb.  3,  1820,  maintained  the  view  that  the  garrison  of  a  be- 
sieged place  that  refused  to  surrender  could  be  put  to  the  sword. 
It  is  to  be  said  to  his  credit,  however,  that  he  never  applied  the  rule 
in  practice.  — "  Wellington  Despatches,"  vol.  i. ,  p.  80,  cited  by  Creasy, 
p.  452. 


WAR.  223 

in  case  of  some  conduct  of  the  enemy  in  gross  viola- 
tion of  the  laws  of  war,  and  then  only  in  the  way  of 
retaliation  for  similar  acts.  The  practice  of  firing 
upon  outposts,  picket-guards,  and  sentinels,  except  for 
the  purpose  of  driving  them  in  during  a  reconnoissance, 
or  as  a  preliminary  to  a  general  advance,  is  strictly 
forbidden.  These  individuals  of  the  enemy  are  partic- 
ularly helpless.  They  take  no  part  in  operations  of 
an  aggressive  character,  and  are  always  ordered  not  to 
attack.  They  are  to  resist  only  when  themselves  at- 
tacked, and  yield  ground  only  to  a  superior  force  of 
the  enemy.  The  rules  of  war  forbid  the  robbery  of 
individuals  of  the  enemy  who  fall  into  the  hands  of  a 
belligerent.  Their  clothing  and  private  property  are  as 
secure  from  violent  appropriation  as  are  those  of  non- 
combatant  citizens ;  arms  and  articles  of  public  prop 
erty  in  their  possession  become  the  property  of  the 
captor's  government — never  the  private  property  ef  an 
individual.  The  wounding  of  prisoners,  or  the  inflic- 
tion of  additional  injuries  upon  those  already  wound- 
ed and  helpless,  is  discountenanced  upon  pain  of  death, 
as  offensive  alike  to  humanity  and  the  rules  of  civil- 
ized warfare.  The  power  of  these  persons  to  do  harm 
has  been  destroyed  by  the  fact  of  wounding,  or  capt- 
ure, and  their  helpless  and  distressing  condition  enti- 
tles them  to  the  most  considerate  treatment.  A  sim- 
ilar reason  forbids  the  use  of  forcible  measures  against 
prisoners  with  a  view  to  extort  from  them  information 
as  to  the  force,  positions,  or  intentions  of  the  enemy. 

23.  Instruments  of  War. — In  no  department  of  hu- 
man endeavor  has  greater  ingenuity  been  displayed, 
in  recent  times,  than  in  the  invention  and  improve- 
ment of  arms,  projectiles,  and  other  instruments  of 


224:  OUTLINES  OF  INTERNATIONAL  LAW. 

war.  Their  destructive  power  has  kept  pace  with  the 
increase  in  their  range  and  efficiency,  and  with  the 
rapidity  with  which  their  fire  can  be  delivered.  The 
result  has  been  to  make  war  so  destructive  as  to  short- 
en its  duration,  and  so  to  materially  diminish  the  losses 
incurred  in  proportion  to  the  forces  engaged  on  either 
side. 

It  is  not  an  objection  to  a  weapon  or  projectile  that 
it  is  merely  destructive.  All  instruments  of  war  have 
that  character,  some  of  them  to  a  remarkable  degree. 
That  one  weapon  or  projectile  is  more  destructive  than 
another  simply  means  that  the  belligerent  adopting  it 
has,  to  the  extent  of  its  superior  destructive  power,  a 
legitimate  advantage  over  his  adversary.  The  decision 
as  to  whether  a  particular  instrument  may,  or  may  not, 
be  employed  in  war  will  depend  upon  the  wound  or  in- 
jury caused  by  its  use.  If  the  wound  produced  by  it 
causes  unnecessary  suffering,  or  needless  injury,  it  is  to 
be  rejected,  otherwise  not.  This  rule  is  applicable  to 
all  instruments  of  whatever  character,  whether  weap- 
ons or  projectiles,  which  may  be  used  in  war.  The 
application  of  this  rule  forbids  the  use  of  cutting  or 
thrusting  weapons  which  have  been  poisoned,  or  which 
are  so  constructed  as  to  inflict  a  merely  painful  wound. 
To  this  class  belong  arrows  with  easily  detached  heads, 
etc.  The  recommendations  of  the  St.  Petersburg  Con- 
ference upon  the  subject  of  explosive  projectiles,  for- 
bidding the  use  of  projectiles  weighing  less  than  four 
hundred  grammes  (twelve  ounces  avoirdupois),  has  re- 
ceived the  general  sanction  of  civilized  nations.  The 
adoption  of  this  rule  renders  unlawful  the  use  of  ex- 
plosive bullets  in  small  arms. 

The  use  of  hot  shot,  and  of  chain  and  bar  shot,  has 


WAR.  225 

been  regarded  as  questionable  by  some  authors,  appar- 
ently because  their  purpose  and  use  was  not  fully  un- 
derstood. Hot  shot  were  used  in  engagements  between 
forts  and  wooden  ships  with  a  view  to  set  fire  to  the 
latter.  Their  use  would  still  be  authorized  for  the 
same  purpose.  Chain  shot  and  bar  shot  were  used  in 
naval  engagements  for  the  purpose  of  cutting  away 
standing  rigging  and  spars.  For  these  objects  their 
continued  use  would  be  lawful.  As  it  is  impossible  to 
use  either  form  of  projectile  in  modern  rifled  guns,  and 
as  they  would  be  alike  ineffective  against  modern  iron- 
clads, which  have  no  standing  rigging,  they  are  now 
practically  obsolete. 

Torpedoes,  as  instruments  of  both  offensive  and  de- 
fensive warfare,  have  come  into  general  use  within  the 
last  twenty -five  years.  That  their  use  has  received 
general  sanction  is  shown  by  the  energetic  measures 
which  have  been  taken  by  most  modern  states  to  equip 
their  navies  with  them,  and  to  adopt  them  as  an  im- 
portant auxiliary  in  their  systems  of  coast  defence. 
Military  mines,  which  greatly  resemble  them  in  pur- 
pose and  destructive  effect,  have  been  regarded  as  an 
essential  feature  of  all  systems  of  permanent  fortifica- 
tion since  the  days  of  Vauban,  and  the  art  of  counter- 
mining in  siege  operations  has  kept  pace  with  the  de- 
velopment of  military  mining  as  a  means  of  offensive 
warfare.  This  is  likely  to  be  the  case  with  torpe- 
does. As  new  forms  are  devised,  and  new  methods  of 
applying  them  are  invented,  corresponding  means  of 
counteracting  their  effects  Avill  be  discovered,  with  the 
result,  it  is  hoped,  of  restricting  within  the  narrowest 
limits  their  terribly  destructive  effects.  On  the  other 
hand,  if  their  offensive  use  should  prove  to  be  capable 
15 


226  OUTLINES  OF  INTERNATIONAL  LAW. 

of  indefinite  development,  and  if  the  coasts  and  har- 
bors of  a  state  be  so  skilfully  defended  with  torpedoes 
and  submarine  mines  as  to  make  it  practically  impos- 
sible for  hostile  fleets  to  approach,  then  the  object  of 
the  state  in  defending  its  ports  will  have  been  com- 
pletely attained,  in  securing  to  the  inhabitants  of  its 
sea-coast  towns  a  practical  immunity  from  hostile  at- 
tack. 

23.  Usages  of  War  at  Sea. — The  usages  of  war  at  sea 
are  the  same  in  substance  as  those  on  land,  although, 
from  the  circumstances  of  the  case,  they  are  much  sim- 
pler of  application.    The  same  rules  apply  as  to  giving 
and  receiving  quarter,  and  as  to  the  treatment  of 
wounded  and  unwounded  prisoners  of  war.    The  crews 
of  captured  merchant  vessels  of  the  enemy  are  made 
prisoners  of  war.     When  neutral  vessels  are  seized  for 
carrying  contraband,  or  for  attempting  to  violate  a 
blockade,  their  crews,  not  being  belligerents,  are  not 
subject  to  confinement  as  prisoners  of  war,  unless  by 
their  conduct  they  render  such  restraint  necessary. 

24.  The  Public  and  Private  Property  of  the  Enemy  • 
Treatment  of  Property  on  Land. — The  property  of  an 
enemy  on  land  may  be  classified  into  public  and  pri- 
vate.   Public  property  is  again  classified  into — 1.  Prop- 
erty of  a  military  character,  or  susceptible  of  appro- 
priation to  military  use.     To  this  class  belong  forts, 
arsenals,  dockyards,  magazines,  and   military  stores 
of  all  kinds.    2.  Money  and  movables  of  all  kinds  be- 
longing to  the  belligerent  government  as  proprietor. 
3.  Property  essentially  civil,  or  non-military  in  charac- 
ter, and  used  for  religious,  charitable,  scientific,  or  ed- 
ucational purposes.    The  two  former  may  be  captured 
and  destroyed,  or  converted  to  the  military  use  of  the 


WAR.  227 

enemy.  The  latter  is  now  exempt  from  seizure,  and 
should  be  protected  by  a  belligerent  if  situated  in,  or 
near,  the  theatre  of  active  operations.1 

25.  Private  property  is  classified  into  real  and  per- 
sonal. Real  property,  whether  consisting  of  land  or 
buildings,  is  exempt  from  seizure  or  destruction,  except 
as  a  direct  necessity  of  military  operations.  It  may  be 
occupied  or  used,  and  during  such  occupation  should  be 
protected  from  all  needless  injury  and  damage.  Per- 
sonal property  is  divided  into — 1.  That  which  is  suscep- 
tible of  direct  military  use  by  a  belligerent.  To  this 
class  belong  pack,  saddle,  and  draft  animals,  means  of 
transportation  of  all  kinds,  cattle,  fuel,  provisions  and 
food  products,  medicines,  forage,  cloth,  leather,  and 
shoes ;  in  general  all  articles  of  wear  and  supply  for 
men  and  animals.  2.  That  which  is  not  susceptible  of 
direct  military  use';  including  money,  works  of  art, 
furniture,  valuables,  clothing,  and  articles  of  general 
merchandise.  The  former  may  be  captured,  or  taken 
by  way  of  requisition ;  the  latter  is  exempt  from  capt- 
ure or  confiscation.  If  such  property  be  taken  by  way 
of  pillage,  the  act  is  severely  punished.  The  taking  of 
private  property  within  the  limits  here  described  is 
sanctioned  by  the  law  of  nations.  It  is  sometimes  paid 
for,  more  frequently,  perhaps,  now  than  formerly,  but 
when  compensation  is  made,  it  is  dictated  rather  by 
motives  of  policy  than  justice.  Illiberal  and  unjust  as 
the  practice  may  be,  it  is  universally  recognized,  and  so 
receives  the  unwilling  sanction  of  International  Law. 
The  army  regulations  of  all  nations  provide  specifi- 
cally, and  in  great  detail,  for  the  maintenance  of  their 

1  Hall,  pp.  139-141;  Halleck,  vol.  ii.,  §§  12, 13. 


228  OUTLINES  OF  INTERNATIONAL  LAW. 

troops  in  the  enemy's  territory,  by  supporting  them, 
wholly  or  in  part,  on  the  country,  and  prescribe  the 
methods  of  quartering  troops,  and  of  collecting  and 
distributing  subsistence  and  forage.1 

26.  Requisitions  are  the  formal  and  regular  levies 
of  supplies,  made  by  an  invading  army  for  its  support, 
in  accordance  with  the  municipal  laws  and  army  reg- 
ulations of  the  state  to  which  it  belongs.  These  laws, 
regulations,  and  orders  prescribe  the  methods  in  ac- 
cordance with  which  the  requisitions  are  to  be  made. 
The  articles  to  be  paid  for,  if  there  be  any  such,  the 
tariffs,  or  rates  of  payment,  and  the  cases  in  which  re- 
ceipts are  to  be  given,  are  stated  in  such  regulations 
and  orders.  They  also  contain  provisions  denouncing 
pillage,  and  prescribing  punishments  for  that  and  other 
unauthorized  taking  of  enemy  property. 

Receipts  should  always  be  given.  They  are  of  im- 
portance, as  payments,  whether  made  by  the  invaders' 
government  or  their  own,  are  based  upon  them ;  and, 
if  not  taken  up  and  paid,  they  may  serve  to  mitigate, 
the  severity  of  future  requisitions  by  the  same  invader. 
Requisitions  may  be  made  by  commanding  officers  of 
any  grade,  but  always  in  strict  accordance  with  law 
and  regulations.  Unauthorized  requisitions  are  usually 
regarded  as  acts  of  pillage,  and  are  punished  accord- 
ingly.* A  question  arises  as  to  whether  a  belligerent 
can  compel  the  personal  services  of  individuals  of  the 
population  of  the  invaded  territory.  Such  services  may 
be  voluntary,  either  on  the  part  of  individuals  or  cor- 

1  Hall,  pp.  139-141;  Halleck,  vol.  ii.,  §§  12, 13. 

9  Art.  18,  Brussels  Conference;  Halleck,  vol.  ii.,  pp.  92,  114;  Hall, 
pp.  361-363;  Heftier,  p.  237;  Boyd's  Wheaton,  p.  411  note;  "United 
States  Instructions,"  §44. 


WAR.  229 

porations,  and,  if  so,  are  paid  for  when  rendered.  "With 
these  International  Law  has  nothing  to  do.  The  right 
of  a  belligerent  to  take  means  of  transportation,  by 
way  of  requisition,  has  always  been  asserted,  and  almost 
invariably  acted  upon.  This  involves  the  right  to 
compel  the  services  of  drivers  and  teams,  and  also  of 
railway,  steamship,  and  telegraph  companies,  and  of 
blacksmiths,  carpenters,  and  other  tradesmen.  These 
services  must  be  obtained  by  force,  as  the  duty  of  a 
citizen  to  his  own  government  forbids  him  to  render 
voluntary  service  to  the  enemy.  The  question  of  pay- 
ment is  discretionary  with  the  belligerent  employer, 
and,  as  in  the  case  of  other  requisitions,  is  rather  a 
matter  of  policy,  or  expediency,  than  of  strict  justice.1 
The  policy  of  the  United  States  in  the  matter  of 
requisitions  has  been  far  from  liberal.  At  the  begin- 
ning of  the  campaign  in  Southern  Mexico,  General 
Scott  was  directed  to  subsist  his  troops  in  the  enemy's 
country.  Upon  the  urgent  remonstrances  of  that  offi- 
cer as  to  the  injustice  and  impolicy  of  such  a  course, 
the  order  was  rescinded,  and  the  regulation  of  the  mat- 
ter left  to  the  discretion  of  the  general  commanding 
in  the  field.  He  therefore  directed  reasonable  prices 
to  be  paid  for  such  articles  as  were  needed  for  the 
subsistence  of  his  army,  and  experienced  so  little  diffi- 
culty in  obtaining  them  as  to  make  a  resort  to  requi- 
sitions unnecessary.  During  the  war  of  the  rebellion 


1  In  January,  1871,  the  Germans,  "who  were  then  in  military  occu- 
pation of  Xancy,  required  the  services  of  five  hundred  laborers  upon 
a  work  of  repairing  the  railway  —  of  considerable  importance  to 
the  success  of  their  operations.  Notice  was  given  that  if  they  were 
not  forthcoming,  at  the  time  indicated,  a  certain  number  of  the  offi- 
cers and  employees  would  be  seized  and  shot. — Hall,  p.  364. 


230  OUTLINES  OF  INTERNATIONAL  LAW. 

generals  in  the  field  were  authorized  to  seize  such  arti- 
cles of  subsistence,  or  forage,  as  were  needed  by  their 
commands.  For  the  property  thus  taken  receipts  were 
to  be  given,  payable  at  the  end  of  the  war,  upon  proof 
of  loyalty.  If  such  proof  were  not  produced,  no  pay- 
ments were  to  be  made.  This  amounted,  in  fact,  to 
the  taking  of  enemy's  property  without  compensation. 

27.  Contributions. — Contributions  are  levies  of  mon- 
ey or  supplies,  made  by  the  authority  of  a  belligerent 
government,  through  the  commander-in-chief  of  its 
armies  in  the  field.     They  are  levied  upon  the  prop- 
erty, or  taxable  resources,  of  a  city  or  district  of  terri- 
tory.    They  are  usually  assessed,  collected,  and  paid 
by  the  local  authorities,  upon  the  formal  demand  of 
the  invading  general.     If  the  amount  of  the  contribu- 
tion be  not  paid,  or  delivered,  at  the  specified  time,  the 
invader  takes  such  measures  as  he  may  deem  necessary 
to  enforce  his  decree.  Unlike  requisitions  they  are  never 
refunded,  or  reimbursed,  by  the  belligerent  who  levies 
them,  though  they  may  be  deducted  from  the  amount 
of  an  indemnity  proposed  to  be  levied  by  a  conquer- 
ing invader  in  the  preparation  of  the  treaty  of  peace. 

28.  Captured  Property  on  Land. — Public  property 
on  land,  and  in  some  instances  private  property  also, 
may  be  captured  by  a  belligerent.     Such  captured 
property  is  called  booty.     It  consists  of  all  public  prop- 
erty that  is  susceptible  of  capture  in  war,  and  of  such 
private  property  as  is  susceptible  of  direct  military 
use.     In  strictness  all  articles  that  may  be  obtained 
by  way  of  requisition  fall  under  the  head  of  booty. 
Aside  from  the  articles  obtained  by  requisition,  booty 
may  consist  of  arms,  ammunition,  provisions,  and  mil- 
itary supplies  of  all  kinds,  and  of  all  public  and  pri< 


WAR.  231 

vate  property  captured  in  battle,  or  as  a  direct  result 
of  military  operations.1  As  is  the  case  with  all  prop- 
erty which  may  be  captured  in  war,  on  land  or  sea, 
the  title  first  vests  in  the  captor's  government.  Such 
title  is  held  to  be  complete  after  twenty-four  hours  of 
actual  possession,  upon  the  presumption  that  secure 
possession  will  be  obtained  within  that  time.  The  capt- 
uring government  may  make  such  disposition  of  this 
captured  property  as  it  deems  best.  It  may  convert 
it  to  its  own  use ;  it  may  cause  it  to  be  sold,  and  may 
appropriate  the  proceeds  of  the  sale  to  governmental 
uses ;  or  it  may  decree  thte  whole,  or  a  part,  to  the  act- 
ual captors  as  a  reward  for  their  services.  The  British 
government,  in  certain  cases,  recognizes  and  rewards 
such  services.  The  government  of  the  United  States 
has  adopted  the  contrary  rule,  and  appropriates  to  its 
own  use  all  property  captured  by  its  armies  on  land. 

The  rules  regarding  booty,  and  those  regarding  the  t 
treatment  of  private  property  seem  to  be  in  conflict. 
They  are  not  so  in  fact.  Private  property  on  land, 
however  great  in  amount,  is  exempt  from  capture  ex- 
cept it  be  susceptible  of  direct  military  use  by  a  bel- 
ligerent, or  contributes  directly  to  the  support  and 
maintenance  of  his  armies.  Arms,  ammunition,  equip- 
ments, and  all  sorts  of  military  stores,  clothing,  or  cloth 
suitable  for  uniforms,  shoes,  leather,  blankets,  medi- 
cines, and  food  and  forage  supplies  of  all  kinds,  are 
susceptible  of  such  appropriation.  Money,  except  by 
way  of  contribution,  clothing  and  cloth  not  adapted 

1  For  the  latest  authoritative  discussion  of  this  subject  see  the 
article,  "The  Right  of  Booty  in  General,  and  especially  the  Right 
of  Maritime  Capture,"  by  Professor  Bluntschli,  in  the  Revue  de 
Droit  International,  vol.  ix.  (1877),  p.  508. 


232  OUTLINES  OF  INTERNATIONAL  LAW. 

for  use  as  uniforms,  and  all  other  products,  manufact- 
ures, and  commodities,  are  exempt  from  capture,  and 
are  entitled  to  protection  by  the  laws  of  war. 

29.  Treatment  of  Non- Combatants  in  the  Theatre  of 
War. — It  has  been  seen  that  the  subjects  of  two  bel- 
ligerent states  become  enemies  at  the  outbreak  or  dec- 
laration of  war.  They  continue  in  this  hostile  relation 
during  its  continuance.  This  status  does  not  author- 
ize them  to  commit  acts  of  hostility,  however,  which 
can  only  be  undertaken  by  persons  having  the  express 
authorization  of  the  belligerent  governments.  The 
rest  of  the  population  of  a  belligerent  territory  are 
not  only  forbidden  to  take  an  active  part  in  military 
operations,  but  are  entitled  to  personal  immunity  and 
protection  so  long  as  they  refrain,  in  good  faith,  from 
taking  part  in  the  war.  A  portion  of  their  property 
may  be  taken,  with  or  without  compensation,  their 
houses  and  lands  may  be  occupied,  and  injured,  or  pos- 
sibly destroyed,  as  a  matter  of  military  necessity ;  but 
their  persons,  and  such  of  their  property  as  is  not  con- 
fiscable  by  the  laws  of  war,  are,  by  the  same  laws,  com- 
pletely protected.  Any  offence  committed  against 
them,  or  their  property,  is  an  offence  against  the  laws 
of  war,  and  is  promptly  and  severely  punished.  This 
exemption  from  the  operations  of  war  they  continue 
to  enjoy  so  long  as  they  take  no  active  part  in  hostile 
operations.  If  they  act  with  the  authority  of  their 
government,  they  become  a  part  of  its  military  force, 
and  are  treated  accordingly.  If  they  act  without  such 
authorization,  and  in  violation  of  the  usages  of  war, 
they  are  no  longer  protected,  but  are  punished  accord- 
ing to  the  nature  and  degree  of  their  offence. 

A  combatant  is  a  person  who,  with  the  special  au- 


WAR.  233 

thorization  of  his  government,  takes  part,  either  direct- 
ly or  indirectly,  in  the  operations  of  war.  The  term 
includes,  in  addition  to  the  troops  of  the  line,  all  staff 
officers,  surgeons  and  chaplains,  officers  and  employees 
of  the  supply  and  transport  service,  all  agents,  con- 
tractors, and  others  who  accompany  the  army  in 
an  official  capacity,  and  who  assist  in  its  movement, 
equipment,  or  maintenance;  and  all  retainers  to  the 
camp. 

A  non-combatant  is  a  resident  of  a  belligerent  state 
who  takes  no  part  in  the  war.  He  is  not  subject  to 
the  laws  of  war,  and  is  protected  by  them,  in  his  per- 
son and  property,  so  long  as  he  refrains  from  partici- 
pation in  military  operations. 

30.  Prisoners  of  War. — A  prisoner  of  war  is  a  com- 
batant who,  by  capture  or  surrender,  falls  into  the 
hands  of  an  enemy.  In  strictness  an  enemy  has  the 
right  to  make  prisoners  of  those  persons  only  whom 
he  may  lawfully  kill  in  war.  In  practice,  however, 
the  former  class  is  much  more  numerous  than  the  lat- 
ter. This  is  because  the  right  of  making  prisoners, 
as  now  exercised,  inflicts  no  particular  hardship  upon 
the  captured  person;  while  his  detention,  as  a  pris- 
oner, may  serve  to  materially  injure  the  enemy,  by 
impeding  him  in  his  military  operations,  or  by  inter- 
fering with  the  efficient  administration  of  his  govern- 
ment. For  this  reason  "he  may  capture  all  persons 
who  are  separated  from  the  mass  of  non-combatants 
by  their  importance  to  the  enemy's  state,  or  by  their 
usefulness  to  him  in  his  war.  Under  the  first  of  these 
heads  fall  the  sovereign  and  the  members  of  his  fami- 
ly when  non-combatants,  the  ministers  and  high  of- 
ficers of  the  government,  diplomatic  agents,  and  any 


234  OUTLINES  OF  INTEKNATIONAL  LAW. 

one  who,  for  special  reasons,  may  be  of  importance  at 
a  particular  moment." ' 

Treatment  of  Prisoners. — So  soon  as  an  individual 
of  the  enemy  ceases  his  armed  resistance  he  becomes 
vested  with  all  the  rights  of  a  prisoner  of  war.  The 
right  to  injure  him  is,  at  that  instant,  changed  into  the 
duty  of  protecting  him,  and  of  preventing  his  escape. 
The  public  property  and  arms  found  in  the  possession 
of  a  prisoner,  at  the  time  of  his  capture,  become  the 
property  of  the  capturing  state.  His  private  property 
is  respected,  and  secured  to  him,  by  the  usages  of  war. 
Were  it  not  so  protected  every  consideration  of  honor 
and  humanity  should  deter  his  captor  from  any  act  of 
aggression  toward  one  who,  from  his  situation,  is  una- 
ble to  defend  himself. 

Prisoners  are  usually  sent  to  the  captor's  state,  or 
are  removed  to  points  at  a  distance  from  the  actual 
theatre  of  war,  where  they  can  be  securely  held.  They 
are  fed  and  clothed  at  the  expense  of  the  captor's  gov- 
ernment. They  are  entitled,  in  addition  to  proper  food 
and  clothing,  to  medical  attendance,  and  to  a  reasona- 
ble allowance  of  fuel,  quarters,  bedding,  and  camp  equi- 
page. They  are  subject  to  such  measures  of  restraint 
as  are  necessary  to  their  safe  keeping ;  and  are  held  to 
the  observance  of  such  sanitary  and  police  regulations 
as  are  made  necessary  by  their  confinement.  The  rules 

1  Hall,  p.  341.  The  practice  has  become  quite  general  of  releasing 
surgeons  and  sometimes  chaplains  left  with  the  wounded  on  the 
field  of  battle,  so  soon  as  their  duties  have  been  performed.  This 
is  done,  or  not,  at  the  discretion  of  the  captor,  however,  and  cannot 
be  claimed  or  demanded  as  a  right.  This  subject  is  now  regulated 
by  the  terms  of  the  Geneva  Convention,  to  which  the  principal 
states  of  Christendom  are  partiea 


WAR.  235 

of  war  authorize  a  belligerent  to  require  them  to  per- 
form a  certain  amount  of  labor,  as  a  reimbursement  of 
the  cost  of  their  support.  Xo  labor  may  be  required 
of  them,  however,  that  is  calculated  to  assist  the  cap- 
tor, directly,  in  his  military  operations.  In  recent  times 
the  practice  has  been  to  require  no  services  of  pris- 
oners of  war  except  such  as  have  contributed  directly 
to  their  comfort  and  welfare. 

Prisoners  of  war  are  not  guilty  of  a  crime  in  having 
defended  their  country.  Their  confinement,  therefore, 
cannot  assume  a  penal  character,  but  must  consist  in 
such  measures  of  detention  as  will  secure  them  against 
danger  of  escape.  A  prisoner  of  war,  in  attempting 
to  escape,  does  not  commit  a  crime.  It  is  his  duty  to 
escape  if  a  favorable  opportunity  presents  itself.  It 
is  equally  the  duty  of  his  captor  to  prevent  his  escape, 
and  he  is  justified  in  resorting  to  any  measures,  not 
punitive  in  character,  that  will  best  secure  that  end. 
A  prisoner  of  war  may  be  killed  in  attempting  to  es 
cape.  If  recaptured  his  confinement  may  be  made 
more  rigorous  than  before. 

According  to  the  present  rule  of  International  Law 
the  status  of  a  prisoner  of  war  may  be  terminated — 
1.  By  exchange ;  2.  By  ransom ;  3.  By  the  treaty  of 
peace  at  the  end  of  the  war. 

Exchange  of  Prisoners. — The  exchange  of  prisoners 
between  belligerents  is  made  in  accordance  with  agree- 
ments, entered  into  for  that  purpose,  called  cartels.  The 
making  of  such  agreements  is  purely  voluntary,  and 
cannot  be  constrained  by  subjecting  prisoners  to  spe- 
cial hardships.  The  time,  place,  and  method  of  ex- 
change are  fully  detailed  in  the  cartels,  the  provisions 
of  which  are  always  strictly  construed.  The  basis  of 


236  OUTLINES  OF  INTERNATIONAL  LAW. 

exchange  is  usually  that  of  strict  equivalents,  man  for 
man,  rank  for  rank,  disability  for  disability.  The  ex- 
changeable values  of  the  different  grades  of  officers 
and  non-commissioned  officers  are  established,  and  ex- 
pressed in  terms  of  private  soldiers.  Numbers  are  then 
computed  for  exchange  upon  the  basis  thus  agreed 
upon.  An  excess  on  either  side  may  constitute  a 
credit,  or  may  be  extinguished  by  a  payment  of  money. 
Prisoners  of  war  who  escape  from  confinement,  or 
who  are  exchanged,  are  by  such  acts  revested  with  all 
the  rights  of  belligerents.  The  binding  force  of  car- 
tels, like  that  of  all  other  agreements  between  bellig- 
erents, rests  upon  the  good  faith  of  the  contracting 
parties.  If  the  terms  of  a  cartel  are  violated  by  one 
belligerent  ,they  cease  to  ,be  obligatory  upon  the  other. 
31.  Paroles. — A  parole  is  a  promise,  either  verbal 
or  written,  made  by  an  individual  of  the  enemy,  by 
which,  in  consideration  of  certain  privileges  or  advan- 
tages, he  pledges  his  honor  to  pursue,  or  refrain  from 
pursuing,  a  particular  course  of  conduct.  Paroles  are 
ordinarily  received  only  from  officers,  and,  when  nec- 
essary, are  given,  by  officers,  for  the  enlisted  men  of 
their  commands.  They  are  accepted  from '  enlisted 
men  only  in  exceptional  cases.  Paroles  are  given  by 
officers  to  secure  greater  freedom  of  movement,  or. to 
obtain  special  privileges,  while  held  by  the  enemy  as 
prisoners  of  war.  These  may,  or  may  not,  be  in  writ- 
ing. They  are  also  given  to  obtain  a  release  from 
captivity,  with  permission  to  return  home.  Such  pa- 
roles are  accompanied  by  a  pledge  to  refrain  from  tak- 
ing part  in  an  existing  war  until  regularly  exchanged. 
They  are  given,  in  writing,  usually  in  duplicate,  one 
copy  being  retained  by  the  captor,  the  other  by  the 


WAR.  237 

officer  giving  the  parole.  These  instruments  are  ob- 
ligatory upon  the  government  of  the  state  to  which  the 
individual  belongs  only  when  accepted,  or  recognized, 
by  its  authority.  That  government  may  refuse  to 
permit  its  officers  to  give  their  paroles,  when  held  as 
prisoners  of  war,  and  may  refuse  to  recognize  them 
when  given.  In  such  an  event,  however,  it  is  the  duty 
of  the  paroled  officer  to  return  at  once  to  captivity. 
As  legal  instruments  paroles  lose  their  binding  force — 

1.  Upon  the  formal  exchange  of  the  paroled  officer ; 

2.  At  the  termination  of  the  war. 

A  l>r,each  of  parole  is  an  offence  against  the  laws  of 
war.  Its  enormity  consists  in  the  breach  of  good  faith 
that  is  involved  in  the  commission  of  the  offence.  The 
punishment  inflicted  is  in  proportion  to  the  importance 
of  the  parole  given.  The  extreme  penalty  is  death, 
which  may  be  inflicted  upon  a  paroled  prisoner  who 
is  captured  in  arms  before  he  has  been  regularly  ex- 
changed. 

32.  Intercourse  between  Belligerents. — Although  the 
rule  of  non-intercourse  between  belligerent  states  pre- 
vails with  great  strictness  during  the  existence  of  war 
between  them,  it  would  be  impossible  even  for  hostil- 
ities to  be  carried  on,  if  all  intercourse,  irrespective  of 
its  character  and  purpose,  were  to  be  absolutely  pro- 
hibited. International  Law  recognizes  this  necessity, 
and  deduces  ,  from ;  the  usages  of  nations  in  war  the 
rules  governing  such  intercourse,  the  conditions  upon 
which  it  is  based,  and  the  formalities  with  which  it 
shall  begin  and  end.  Such  intercourse,  to  be  lawful, 
must  have  some  direct  connection  with  the  existing 
state  of  war,  or  must  be  carried  on  with  a  view  to  the 
re-establishment  of  friendly  relations. 


238  OUTLINES  OF  INTEKNATIONAL  LAW. 

Flags  of  Truce. — Communication  between  belliger* 
ents  in  the  field  is  established  by  means  of  flags  of 
truce.  They  are  sent  toward  the  enemy's  lines  habit- 
ually during  an  interval  of  active  operations.  In  case 
of  extreme  urgency  they  may  be  sent  during  an  en- 
gagement. Though  each  party  has  a  right  to  send 
them,  there  is  no  corresponding  obligation  on  the  part 
of  the  enemy  to  receive  them,  though  it  is  usual  to  do 
so  save  in  very  exceptional  cases.  After  due  notifica- 
tion has  been  given  they  may  be  warned  away ;  and, 
after  a  reasonable  time  has  been  given  to  allow  them, 
to  withdraw,  they  may  be  fired  upon.  An  officer  com- 
ing under  a  flag  of  truce  has  no  right  to  enter  the  ene- 
my's lines,  nor  can  he  demand  that  he  be  conducted 
into  the  presence  of  the  commanding  general.  As  a 
matter  of  strict  right  he  cannot  expect  to  pass  the 
outposts  of  the  hostile  army.  His  message,  if  writ- 
ten, may  there  be  transferred  to  the  officer  receiving 
him,  or,  if  verbal,  the  belligerent  may  demand  that  it 
be  reduced  to  writing,  or  that  it  be  delivered  orally 
to  such  person  as  the  commanding  general  may  desig- 
nate to  receive  it.  If  permitted  to  pass  the  outposts 
he  may  be  blindfolded,  or  resort  may  be  had  to  such 
other  means  as  will  prevent  him  from  obtaining  infor- 
mation. While  the  officer  accompanying  a  flag  may 
see  whatever  the  enemy  permits  him  to  see,  while  in 
that  enemy's  lines  under  a  flag  of  truce,  and  the  bearer 
of  a  lonafide  message,  the  rules  of  war  justly  forbid 
the  sending  of  flags  of  truce  with  a  view  of  obtain- 
ing information,  either  directly  or  indirectly.  The 
present  rule  of  war  regards  the  use  of  flags  for  the 
purpose  of  obtaining  information  as  illegal  and  dishon- 
orable, subjecting  the  bearer  to  punishment  as  a  spy. 


WAR.  239 

33.  Cartels  and  Capitulations. — A  cartel  is  an  agree- 
ment entered  into  between  the  commanding  generals 
of  opposing  armies,  or  fleets,  for  the  purpose  of  effect- 
ing an  exchange  of  prisoners.     Capitulations  are  com- 
pacts entered  into,  between  the  same  parties,  to  regu- 
late the  details  of  surrender  of  a  fortified  place,  a 
vessel  of  war,  or  a  defeated  army  in  the  field.     They 
are  drawn  up  in  the  same  manner  as  treaties,  though 
not  with  the  same  formalities,  and  are  interpreted  in 
accordance  with  the  same  rules.     The  general  com- 
manding an  army  in  the  field  is  presumed  to  have 
authority  to  make  them,  and  to  give  effect  to  their 
provisions.    If  he  lacks  such  authority,  or  if  his  powers 
in  this  respect  be  limited,  it  is  his  duty  to  so  notify 
his  enemy. 

34.  Safe-conducts  and  Safeguards.-^- A  safe-conduct 
is  a  pass  given  to  an  enemy  subject  by  the  general 
commanding  an  army  in  the  field.     It  authorizes  the 
bearer  to  pass  from  one  specified  point  to  another,  by 
a  specified  route,  and  within  certain  stated  limits  of 
time.    If  the  authority  granted  be  exceeded,  the  holder 
is  liable  to  be  regarded  as  a  prisoner  of  war.    If  undue 
advantage  be  taken  of  a  safe-conduct,  to  obtain  infor- 
mation, the  offender  violates  the  laws  of  war,  and  may 
be  punished  accordingly.     A  safeguard  is  a  written 
protection  to  persons,  or  property,  or  both,  such  per- 
sons being  resident,  or  property  situate,  within  the 
lines  of  the  general  issuing  it.     It  is  given  upon  the 
authority,  and  by,  or  in  the  name  of,  the  general-in- 
chief,  and  is  binding  upon  all  persons  under  his  com- 
mand.    "  Sometimes  they  are  delivered  to  the  parties 
whose  persons  or  property  are  to  be  protected;  at 
others  they  are  posted  upon  the  property  itself,  as 


24:0  OUTLINES  OF  INTEENATIONAL   LAW. 

upon  a  church,  museum,  library,  public  office,  or  pri 
vate  dwelling.  They  are  particularly  useful  in  the  as- 
sault of  a  place,  or  after  its  capture,  or  after  the  ter- 
mination of  a  battle,  to  protect  the  persons  or  prop- 
erty of  friends  from  destruction  by  an  excited  sol- 
diery." l 

Violations  of  either  safe-conducts  or  safeguards  are 
punished  with  the  greatest  severity. 

It  is  seen  that  safe  -  conducts  and  safeguards  are 
binding  upon  the  troops  commanded  by  the  general 
who  issues  or  signs  them.  Whoever  violates  them, 
therefore,  not  only  violates  the  laws  of  war,  but  is  also 
guilty  of  the  most  serious  of  all  military  offences — dis- 
obedience of  orders.  For  this  reason  escorts  are  usu- 
ally furnished  to  enforce  respect  to  these  instruments, 
and  severe  penalties  are  imposed  upon  those  who  vio- 
late them.  "  Such  escorts  or  guards  are  justified  in 
resorting  to  the  severest  measures  to  punish  any  vio- 
lation of  their  trust." a 

35.  Licenses  to  Trade. — Licenses  to  trade  are  writ- 
ten instruments  authorizing  their  holders  to  engage  in 
certain  trade  with  the  enemy.  The  rules  in  accordance 
with  which  the  trade  is  to  be  conducted,  the  articles 
to  be  bought,  sold,  or  exchanged,  the  amount  of  trade 
authorized,  the  vehicles,  whether  ships  or  wagons,  etc., 
in  which  it  is  to  be  carried  on,  are  all  specifically  laid 
down  in  the  permit.  A  breach  of  any  of  its  conditions 
involves  the  forfeiture  of  the  goods,  conveyances,  and 
other  implements  engaged,  as  it  constitutes  an  offence 
similar  to  breach  of  blockade. 

Licenses  are  issued  by  a  belligerent  government,  or 

1  Halleck,  vol.  ii.,  pp.  353,  354  »  Ibid. 


WAR.  241 

by  a  general  in  the  field,  with  the  sanction  of  his  gov- 
ernment. Trade  carried  on  under  them  becomes  legal, 
and  is  so  regarded  by  courts  of  the  state  by  whom  the 
license  is  granted. 

36.  Crimes  and  Offences  against  the  Laws  of  War. — 
Certain  acts  done  during  a  state  of  war  are  regarded 
by  all  nations  as  violations  of  the  laws  of  war.  They 
are  crimes  at  International  Law,  and  may  be  punished 
by  the  belligerent  who  suffers  by  their  commission. 
Such  an  infliction  of  punishment  by  one  belligerent 
furnishes  the  other  with  no  ground  of  retaliation  or 
complaint.  All  crimes  against  the  laws  of  war  lose 
their  criminal  character  at  the  close  of  the  war,  and 
are  then  no  longer  punishable.  They  are  crimes  ac- 
cording to  a  code  of  law  which  ceases  to  exist  when 
peace  is  declared;  therefore  all  prisoners  held  by  a 
belligerent,  for  violation  of  the  laws  of  war,  are  en- 
titled to  be  set  at  liberty  at  the  date  when  the  treaty 
of  peace  goes  into  effect. 

Spies. — A  spy  is  a  person  who  enters  the  lines  of  an 
army  in  disguise,  or  under  false  pretences,  for  the  pur- 
pose of  securing  information.  An  individual  who,  in 
the  proper  uniform  of  his  army,  penetrates  within  an 
enemy's  Iine3,  is  not  a  spy,  for  it  is  the  duty  of  the 
enemy  to  maintain  his  line  of  outposts  at  such  strength 
and  efficiency,  in  point  of  numbers,  as  will  make  it  im- 
possible for  individuals  to  pass  them.  Concealment 
or  disguise,  and  the  employment  of  false  pretences,  are 
essential  elements  to  the  crime,  of  being  a  spy.  Those 
who  undertake  to  gain  information  of  the  enemy's 
movements  by  means  of  balloons  cannot  be  regarded 
as  spies,  for  none  of  the  essential  conditions  of  the 
offence  attend  such  operations.  Spies  are  employed 
16 


242  OUTLINES  OF  INTERNATIONAL  LAW. 

at  rates  of  pay  commensurate  to  the  risks  they  under- 
take, and  are  presumed  to  be  aware  of  the  penalty 
incurred  in  the  event  of  their  being  captured  by  the 
enemy.  Service  as  a  spy  is  voluntary,  and  cannot  be 
compelled.  A  state  cannot  require  an  individual  in 
its  military  service  to  act  as  a  spy.  If  it  permits  or 
authorizes  a  person  in  its  military  or  naval  service  to 
act  in  that  capacity,  the  fact  of  his  being  in  such  ser- 
vice will  not  screen  him  from  punishment,  should  he 
be  apprehended  by  the  enemy ;  nor  will  retaliation  be 
justifiable  on  the  part  of  the  belhgerent  who  so  em- 
ploys persons  in  his  military  service. 

For  being  a  spy  the  punishment  is  death.  An  indi- 
vidual charged  with  the  crime  cannot  demand  a  trial ; 
it  is  granted,  if  at  all,  by  the  municipal  law  of  the 
captor's  state. 

Guerillas. — These  are  persons  who  lurk  in  the  vicin- 
ity of  an  army,  and  commit  acts  of  hostility  without 
the  authorization  of  their  government,  or  who  carry 
on  their  operations  in  violation  of  the  laws  of  war. 
Small  bands  or  organized  parties,  commissioned  by  their 
government  and  forming  a  part  of  its  regular  forces, 
are  called  partisans.  Their  operations,  however  an- 
noying to  an  enemy,  are  perfectly  lawful  so  long  as 
they  are  carried  on  in  accordance  with  the  laws  of 
war.  The  evil  must  be  remedied  by  opposing  such 
partisan  forces  by  other  forces  of  a  similar  character. 

Guerillas,  however,  are  not  partisans,  "their  acts  are 
unlawful,  and  when  captured  they  are  not  treated  as 
prisoners  of  war,  but  as  criminals,  subject  to  the  pun- 
ishment due  to  their  crimes.  .  .  .  The  perpetrators  of 
such  acts,  under  such  circumstances,  are  not  enemies, 
legitimately  in  arms,  who  can  plead  the  laws  of  war 


WAR.  243 

in  their  justification,  they  are  robbers  and  murderers, 
and,  as  such,  may  be  punished." ' 

Pillaging  consists  in  the  forcible  taking  of  property 
in  an  enemy's  country,  without  authority,  and  in  diso- 
bedience of  orders.  It  has  been  seen  that  the  laws  of 
war  prescribe  a  method  in  strict  accordance  with  which 
certain  kinds  of  property  may  be  taken  in  war.  If  it 
be  taken  in  any  other  way  such  taking  constitutes  pil- 
lage, and  is  punishable  accordingly.  There  can  be  no 
higher  test  of  discipline  in  a  command  than  is  shown 
by  the  manner  in  which  the  private  property  of  an 
enemy  is  treated  within  its  sphere  of  operations.  If 
such  property  is  respected,  if  acts  of  pillage  are  strictly 
repressed  and  severely  punished,  the  discipline  is  good. 
If  property  and  life  are  unsafe  in  its  vicinity,  if  irreg- 
ular seizures  are  permitted,  if  orchards  and  fields  are 
devastated,  discipline  worthy  of  the  name  cannot  be 
said  to  exist. 

The  punishment  of  pillage  varies  with  the  nature  of 
the  offence.  The  extreme  penalty  is  death. 

Crimes  of  Violence.  —  Certain  crimes  of  violence, 
such  as  murder,  robbery,  mayhem,  rape,  burglary,  as- 
sault and  battery,  and  assaults  with  intent  to  commit 
crime,  when  committed  by,  or  against,  residents  or  in- 
dividuals of  the  invading  army,  are  punishable  by  mil- 
itary commissions,  or  other  tribunals  of  like  jurisdic- 
tion. The  punishment  inflicted  is  usually  more  severe 
than  that  awarded  by  the  law  of  the  place  where  the 
offence  is  committed.  This  course  is  made  necessary 

1  Halleck,  vol.  ii.,  p.  7.  General  Halleck  includes  guerillas  and 
partisans  under  the  same  designation.  In  this  matter  it  is  rather 
the  service  in  which  these  persons  are  engaged,  than  their  name,  by 
which  their  status  is  regulated. 


244  OUTLINES  OF  INTERNATIONAL  LAW. 

by  the  fact  tlmt,  in  the  immediate  theatre  of  war,  all 
civil  authority  is  suspended,  the  local  courts  being 
prevented,  by  the  fact  of  war,  from  exercising  their 
ordinary  functions.  If  such  crimes  were  not  punished 
by  the  belligerent  they  would  go  unpunished,  a  most 
undesirable  event  from  every  point  of  view.  Crimes, 
at  such  a  time,  are  of  more  frequent  occurrence,  and 
are  usually  of  greater  enormity,  than  during  a  state  of 
peace.  The  ordinary  restraints  of  law  are  removed 
or  suspended,  and  the  criminal  class  soon  asserts  itself 
as  it  finds  that  opportunity,  temptation,  and  apparent 
immunity  go  hand  in  hand.  Instances  have  occurred 
in  which  prisons  and  jails  have  been  emptied  upon  the 
approach  of  an  invading  army.  The  very  presence  of 
a  hostile  force  upon  the  soil  of  a  country  seems  to  breed 
a  special  criminal  class.  This  class  is  recruited  by  de- 
serters from  both  armies,  who,  operating  singly  or  in 
small  bands,  commit  depredations  of  all  kinds,  accom- 
panying their  criminal  acts  with  the  most  barbarous 
atrocities.  It  is  to  the  suppression  of  this  kind  of 
brigandage  that  every  belligerent  finds  himself  obliged 
to  devote  considerable  time  and  attention,  and,  not 
infrequently,  a  large  amount  of  military  force.  No 
repressive  measures  are  too  severe  which  effect  any 
reduction  in  this  kind  of  crime.  The  criminals  them- 
selves are  outlaws,  beyond  the  protection  of  all  law, 
civil  or  martial,  and  may  be  hunted  down  like  wild 
beasts. 

37.  Temporary  Occupation. — When  an  invading 
force  has  taken  secure  possession  of  a  portion  of  the 
enemy's  territory,  such  territory  is  said  to  be  occupied, 
and  the  invader  may  exercise  there  all  the  rights  of 
occupation.  The  former  sovereignty  has  been  dis- 


WAR.  245 

placed  by  force.  The  allegiance  of  the  inhabitants  to 
their  former  sovereign,  although  suspended  by  war, 
has  not  been  destroyed.  Their  allegiance  to  the  in- 
vader is  constrained  and  involuntary,  and  can  be  re- 
tained by  him  only  so  long  as  the  occupying  force  is 
maintained  at  such  strength  as  to  compel  obedience. 

History  of  the  Different  Views  of  Occupation. — The 
theory  of  the  Roman  Law,  upon  the  subject  of  occupa- 
tion, was  that  territory,  or  other  property,  lost  by  a 
state  as  a  result  of  war,  became  the  property  of  him 
who  was  sufficiently  powerful  to  occupy  and  retain 
it ;  and  that,  during  such  transient  occupancy,  all  the 
rights  and  powers  of  sovereignty  were  vested  in  the 
invader.  The  allegiance  of  the  inhabitants  to  their 
former  sovereign  was  legally  dissolved,  and  was,  by 
the  fact  of  hostile  occupation,  transferred  to  the  new 
sovereign.  This  view  was  maintained,  in  practice, 
until  after  the  middle  of  the  eighteenth  century. 
Toward  the  close  of  the  last  century,  and  as  a  conse- 
quence of  the  frequent  cases  of  occupation  during  the 
wars  that  followed  the  French  Revolution,  a  different 
view  began  to  prevail.  The  doctrine  of  a  complete 
transfer  of  allegiance  and  sovereignty  was  generally 
abandoned,  and  was  replaced  by  a  theory  of  tempora- 
ry substitution  of  sovereignty,  involving  a  temporary 
transfer  of  allegiance  on  the  part  of  the  inhabitants  of 
the  occupied  territory.  This  view  may  be  stated  as 
follows :  "  The  power  to  protect  is  the  foundation  of 
the  duty  of  allegiance ;  when,  therefore,  a  state  ceases 
to  be  able  to  protect  a  portion  of  its  subjects,  it  loses 
its  claim  upon  their  allegiance,  and  they  either  directly 
pass  under  a  temporary  or  qualified  allegiance  to  the 
conqueror,  or,  as  it  is  also  put,  being  able,  in  their 


24:6  OUTLINES  OF  INTERNATIONAL  LAW. 

state  of  freedom,  to  enter  into  a  compact  with  the  in- 
vader, they  tacitly  agree  to  acknowledge  his  sovereign- 
ty in  consideration  of  the  relinquishment  by  him  of 
the  extreme  rights  of  war  which  he  holds  over  their 
lives  and  property." 1 

Present  View  of  Occupation. — The  present  view  of 
occupation  is  that  no  permanent  change  ensues  in  the 
national  character,  or  allegiance,  of  the  population  of  an 
occupied  territory  as  a  result  of  the  mere  fact  of  occu- 
pation. The  invader  maintains  himself  in  such  territory 
by  force.  The  relation  existing,  between  the  command- 
ing general  of  the  occupying  force  and  the  population, 
is  not  that  of  allegiance,  but  of  constrained  obedience ; 
and  it  exists  only  so  long  as  he  is  able  to  compel  such 
obedience  by  force.  The  authority  exercised  by  an 
invader  is  something  entirely  different  from  that  exer- 
cised by  the  legitimate  government,  and  rests  upon  an 
entirely  different  basis.  In  most  respects  it  is  greater 
and  more  extensive  than  the  latter,  and  has  no  founda- 
tion in  the  consent  of  the  governed.  The  legitimate 
government  of  the  occupied  territory  is  temporarily 
displaced  and  overthrown ;  the  functions  of  its  officers 
and  agents  are  suspended,  and  the  territory  is  ruled  by 
martial  law.  If  the  ordinary  laws  of  the  country,  or 
any  of  them,  are  permitted  to  exist,  and  if  the  courts 
are  permitted  to  administer  them,  they  do  so  at  the 
pleasure  of  the  commanding  general.  No  guarantees, 
constitutional  or  otherwise,  are  effective  against  his 
will,  and  his  consent  to  their  existence,  or  execution, 
may  be  withdrawn  at  any  time.  The  occupation  is 

1  Hall,  pp.  397,  398,  citing  Kluber,  §  256;  Halleck,  vol.  ii.,  chap, 
xxxiii.,  §14;  De  Martens,  §  280. 


WAR. 

military,  not  civil,  and  the  invader,  in  carrying  on  his 
government,  is  controlled  by  various  considerations, 
among  which,  from,  the  necessities  of  the  case,  those 
of  a  military  character  are  likely  to  prevail. 

Rights  of  Occupation. — The  movable  property  of 
the  displaced  government  vests  in  the  belligerent  in- 
vader by  right  of  capture.  He  may  make  such  use  of 
the  state  property  and  lands  as  he  sees  fit,  and  the  in- 
come from  such  property  is  payable  to  him  during  the 
period  of  his  occupation.  Taxes  due,  and  payable, 
are  collected  by  his  authority,  and  are  appropriated  to 
his  use.  If  he  increases  them,  or  imposes  any  other 
burdens  or  exactions  upon  persons  or  property,  he 
does  so  in  virtue  of  his  right  to  levy  contributions 
and  requisitions. 

The  purpose  of  war  is  to  obtain  redress  for  an  in- 
ternational wrong.  To  accomplish  this  purpose  the 
use  of  force  which  is  excessive,  or  which  does  not 
directly  contribute  to  the  end  in  view,  is  not  lawful. 
An  invader,  therefore,  is  not  justified,  during  his  tem- 
porary occupancy,  in  making  political  or  constitutional 
changes  in  the  government  of  the  occupied  territory. 
The  courts  of  the  country  should  be  kept  open,  the 
subordinate  officers  of  the  administration  should  be 
continued  in  their  functions ;  supported  and  sustained, 
if  need  be,  by  the  military  force  of  the  invader.  The 
responsibility  of  maintaining  public  order,  and  of  pun- 
ishing crime,  falls  directly  upon  the  commanding  gen- 
eral of  the  occupying  force.  In  the  performance  of 
this  duty  he  may  make  use  of  the  local  criminal  courts, 
wholly  or  in  part ;  or  he  may  resort  to  martial  law. 

Martial  Law. — Martial  law,  or,  to  speak  more  cor- 
rectly, martial  rule,  or  the  state  of  siege,  is  a  term 


248  OUTLINES  OF  INTERNATIONAL  LAW. 

applied  to  the  government  of  an  occupied  territory 
by  the  commanding  general  of  the  invading  force. 
Martial  law  also  prevails  in  the  immediate  theatre  of 
operations  of  an  army  in  the  field.  The  reason  in  both 
cases  is  the  same.  The  ordinary  agencies  of  govern- 
ment, including  the  machinery  provided  for  the  pre- 
vention and  punishment  of  crime,  are  suspended  by 
the  fact  of  war.  This  suspension  takes  place  at  a  time 
when  society  is  violently  disturbed,  when  the  usual  re- 
straints of  law  are  at  a  minimum  of  efficiency,  and  when 
the  need  of  such  restraints  is  the  greatest  possible.  This 
state  of  affairs  is  the  direct  result  of  the  invasion,  or 
occupation,  of  the  disturbed  territory  by  an  enemy. 
The  only  organized  power  capable  of  restoring  and 
maintaining  order  is  that  of  the  invading  force,  which 
is  vested  in  its  commanding  general.  Upon  him, 
therefore,  International  Law  places  the  responsibility 
of  preserving  order,  punishing  crime,  and  protecting 
life  and  property  within  the  limits  of  his  command. 
His  power  in  the  premises  is  equal  to  his  responsibil- 
ity. In  cases  of  extreme  urgency,  such  as  arise  after 
a  great  battle,  or  the  capture  of  a  besieged  place  or  a 
defended  town,  he  may  suspend  all  law,  and  may  pun- 
ish crimes  summarily,  or  by  tribunals  of  his  own  con- 
stitution. 

If  his  occupation  be  temporary,  amounting  to  a  mere 
passage  through  a  portion  of  the  enemy's  territory,  he 
may  decline  to  interfere  in  local  affairs,  further  than 
to  make  such  transient  dispositions  as  will  protect  non* 
combatants  and  their  property  along  his  line  of  march. 
If  he  occupies  a  district  for  a  considerable  period  of 
time  his  responsibility  becomes  more  general,  and  the 
performance  of  his  duty  more  intricate  and  difficult. 


WAE.  249 

To  deduce  a  rule  that  shall  control  a  general  command- 
ing in  an  enemy's  country,  his  position  and  duty  must 
be  clearly  understood.  He  appears  in  the  occupied 
territory  as  an  agent  of  his  government,  charged  with 
conduct  of  certain  military  operations.  His  first  re- 
sponsibility is  to  his  own  government,  for  the  success- 
ful conduct  of  the  military  operations  with  the  direc- 
tion of  which  he  is  charged.  In  carrying  on  those  op- 
erations his  government  and  himself  are  bound  by  the 
laws  of  war.  The  usages  of  war  authorize  him  to 
employ  certain  forcible  measures  toward  his  enemy. 
They  forbid  indiscriminate  violence,  the  use  of  exces- 
sive force,  or  the  use  of  any  force  which  does  not  con- 
tribute directly  to  the  end  for  which  the  war  is  under- 
taken. His  exercise  of  authority  in  the  occupied  ter- 
ritory must,  therefore,  be  the  least  possible,  consistent 
with  these  ends.  He  may  suspend  the  constitution  and 
municipal  laws,  but  he  cannot  change  them,  because 
such  changes  in  no  way  contribute  to  the  prosecution 
of  the  war.  He  can  impose  no  unusual  or  unauthor- 
ized burdens  upon  persons  and  property,  because  the 
laws  of  war  require  him  to  protect  them. 

If  the  territory  is  to  be  occupied  for  a  considerable 
time,  but  without  the  intention,  on  the  part  of  the  in- 
vader, of  permanently  incorporating  it  in  his  own  do- 
minions, it  is  usual  to  permit  the  local  laws  to  prevail, 
and  to  sanction  their  enforcement  by  the  existing 
courts  and  other  legal  agencies.  Crimes  of  special 
atrocity,  offences  against  the  laws  of  war,  and  crimes 
over  which  neither  the  local  nor  military  courts  have 
jurisdiction,  are  tried  and  punished  by  military  com- 
missions, or  other  special  tribunals,  constituted  for  the 
purpose  by  the  commanding  general.  The  existence 


250  OUTLINES  OF  INTERNATIONAL   LAW. 

of  these  tribunals  is  recognized  by  the  laws  of  war  as 
a  necessity  of  martial  rule. 

Difference  of  Opinion  as  to  the  Meaning  of  the  Term 
Occupation. — The  precise  meaning  of  the  term  occupa- 
tion has  given  rise  to  much  difference  of  opinion.  A 
definition  was  attempted  at  the  Brussels  Conference, 
in  1874.  In  accordance  with  this  definition,  "  A  ter- 
ritory is  considered  as  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army.  The 
occupation  only  extends  to  those  territories  where  this 
authority  is  established  and  can  be  exercised." 1 

Opposing  Views. — Two  views  have  been  advanced 
as  to  what  constitutes  military  occupation.  One,  main- 
tained by  England  and  the  smaller  European  states, 
regards  a  portion  of  territory  as  occupied  only  when 
it  is  held  by  a  force  sufficient  to  maintain,  at  all  points, 
the  authority  of  the  invader,  and  to  suppress  uprisings 
against  such  authority.  The  Swiss  delegate  to  the 
Brussels  Conference  properly  compared  this  view  of 
military  occupation  to  a  valid  blockade ;  both,  to  be 
binding,  must  be  maintained  in  sufficient  force  to  be 
effective.  The  other,  and  opposite  view,  is  supported 
by  some  of  the  more  powerful  Continental  states ;  they 
regard  occupation  as  complete  when  actual  armed  re- 
sistance has  ceased,  and  the  authority  of  the  legitimate 
government  has  been  displaced  or  overthrown.  Obe- 
dience then  becomes  the  duty  of  the  population,  inde- 
pendently of  the  force  by  which  such  authority  is  main- 
tained. Kisings  against  the  authority  of  an  invader 
are  by  them  viewed  as  illegal-  subjecting  persons,  dis- 


1  "Article  1,  Project  of  an  International  Declaration  Concerning 
the  Laws  and  Customs 'of  War,"  Brussels,  1874. 


WAR.  251 

tricts,  and  towns  who  favor  them,  or  who  take  part  in 
them,  to  severe  punishments. 

The  operation  of  this  rule  would  work  to  the  advan- 
tage of  states  which  maintain  large  standing  armies, 
and  would  greatly  facilitate  aggressive  warfare.  They 
would  operate  with  greatest  force  against  states  which 
maintain  small  permanent  establishments,  whose  poli- 
cy is  rather  defensive  than  offensive,  and  who  would 
be  obliged  to  rely,  in  time  of  war,  upon  the  united  re- 
sistance of  their  entire  combatant  population. 

Of  the  two  views  which  have  been  described,  there 
can  be  no  question  that  the  former  is  more  nearly  in 
accordance  with  the  present  rule  of  International  Law. 
Occupation  is  an  act  of  force,  the  martial  rule  of  the 
invader  is  maintained  by  force,  the  obedience  of  the 
population  is  compelled  by  force,  and  obedience  exists 
only  so  long  as  the  constraint  continues.  The  right 
of  revolution  is  now  recognized  to  exist,  even  against 
the  regular  government  of  a  state,  which  rests  upon 
the  presumed  consent  of  the  governed.  Still  more 
does  the  right  of  armed  resistance  exist  against  an  au- 
thority, which  not  only  has  no  basis  in  the  consent  of 
the  governed,  but  which  is  enforced  and  maintained, 
against  such  consent,  by  superior  military  force. 

Permanent  Occupation. — The  rules  which  have  been 
discussed  refer  to  cases  of  temporary  occupation.  "When 
a  conquest  is  to  be  made  permanent,  as  when  a  prov- 
ince is  recovered  by  the  state  to  which  it  originally 
belonged,  a  belligerent  is  justified  in  making  such  per- 
manent political  changes  as  he  may  deem  expedient  or 
necessary. 

38.  Retaliation. — The  laws  of  war  are  equally  ob- 
ligatory upon  the  belligerent  states  and  their  allies, 


252  OUTLINES  OF  INTERNATIONAL  LAW. 

and  upon  the  generals  who  control  and  direct  their 
military  operations  in  the  field.  The  duty  of  observ- 
ing these  laws  is  reciprocal,  and  bears  equally  upon 
both  belligerents.  If  either  of  them  violates  a  rule  of 
war,  or  fails  to  conduct  his  operations  in  strict  accord- 
ance with  them,  he  cannot  complain  of  similar  conduct 
on  the  part  of  his  enemy.  On  the  contrary,  he  must 
expect  it.  The  power  of  compelling  an  enemy  to  ob- 
serve the  rules  of  war,  or  to  refrain  from  violating  any 
particular  one  of  them,  is  called  the  right  of  retaliation. 
A  general  who  suifers  a  wrong  at  the  hands  of  an  ene- 
my, or  who  finds  that  his  enemy  has  violated  any  of 
the  accepted  usages  of  war,  addresses  him  a  communi- 
cation setting  forth  the  facts  which  constitute  his 
ground  of  complaint.  If  no  explanation  or  apology 
is  attempted,  or  if  the  enemy  assumes  the  responsibil- 
ity of  the  act,  he  is  justified  in  resorting  to  measures 
of  retaliation.  In  choosing  a  means  of  retaliation,  re- 
venge cannot  enter  into  the  consideration  or  decision 
of  the  question.  His  sole  purpose  must  be  to  constrain 
his  adversary  to  discontinue  the  irregular  acts  com- 
plained of.  Unless  the  enemy's  act  be  in  gross  viola- 
tion of  the  dictates  of  humanity,  he  must  retaliate  by 
resorting  to  similar  acts  in  his  military  operations. 
States  which  find  themselves  compelled  to  resort  to 
retorsion,  as  a  means  of  obtaining  justice,  are  permitted 
to  make  use  of  equivalent  wrongs.  Generals  who  are 
obliged  to  have  recourse  to  retaliatory  measures,  how- 
ever, must  confine  themselves  to  the  same  or  simi- 
lar acts.  This  because  of  the  difficulty  of  balancing 
wrongs,  and  because  the  enemy,  not  appreciating  the 
justice  of  the  remedy  adopted,  may  feel  himself  justi- 
fied in  still  further  departing  from  the  accepted  usages, 


WAR.  253 

and  may  ultimately  decline  to  be  bound  by  any  of  the 
rules  of  civilized  warfare. 

THE  TERMINATION  OF  WAE. 

39.  Truce  and  Peace. — A  truce,  or  suspension  of  arms., 
is  a  discontinuance  of  hostile  operations  over  the  whole, 
or  a  part,  of  the  theatre  of  military  operations.  They 
are  classified  according  to  their  purpose  and  duration, 
and  according  to  the  authority  of  the  officers  who  may 
make  them,  into  special  and  general  truces.  A  special 
truce  may  be  entered  into  by  officers,  of  any  grade, 
who  command  armies  or  separate  detachments.  They 
are  always  of  a  temporary  character,  and  are  made  for 
the  purpose  of  arranging  the  details  of  surrender  of  a 
defeated  army,  or  besieged  place ;  for  burying  the  dead, 
or  removing  the  wounded,  after  a  battle  or  assault ;  or 
for  conveying  a  message  to  the  enemy,  and  receiving 
Ms  reply,  in  some  matter  of  necessary  intercourse. 
These  truces  may  be  verbal  or  written.  In  general 
the  agreement  consists  in  the  letter  of  one  general  pro- 
posing a  truce  for  a  certain  purpose,  and  in  the  reply 
of  his  adversary  accepting  the  proposed  arrangement. 
The  duration  of  the  truce,  in  point  of  time,  is  precisely 
stated  in  the  agreement ;  and  the  truce  expires,  without 
notice,  at  the  hour  fixed  for  its  termination.  Special 
truces  are  binding  upon  all  persons  under  the  command 
of  the  officers  who  make  them. 

What  may  be  Done  during  a  Special  Truce. — Dur- 
ing a  truce  the  contracting  parties  are  bound  to  refrain 
from  all  acts  of  hostility,  and  to  desist  from  all  military 
operations  of  a  hostile  character,  and  from  all  prepara- 
tory movements,  or  manoeuvres,  which  could  not  have 
been  performed  during  the  continuance  of  hostilities, 


254  OUTLINES  OF  INTERNATIONAL  LAW. 

or  which  would  have  been  performed  under  the  fire 
of  the  enemy.  This  rule  of  conduct  is  deduced  from 
the  definition  of  a  truce — a  suspension  of  hostilities. 
The  end  of  a  truce  should  find  both  belligerents  in 
precisely  the  same  situation  in  which  they  were  when 
it  began.  "Whatever  could  have  been  done  without 
regard  to  the  enemy,  during  hostilities,  may  continue 
to  be  done  during  a  truce.  The  movement  of  trains 
over  a  line  of  supply,  the  process  of  collecting  forage 
and  provisions,  by  requisition,  in  districts  within  the 
secure  control  of  either  party,  may  continue  during  a 
truce.  It  has  also  been  contended  that  a  closely  in- 
vested place  may  stipulate  for  the  privilege  of  receiv- 
ing an  amount  of  supplies  equivalent  to  that  consumed 
during  the  truce.  In  strict  justice,  perhaps,  this  claim 
should  be  admitted.  The  fall  of  such  a  place,  however, 
is  usually  only  a  question  of  time ;  the  besieger  occu- 
pies a  position  of  decided  advantage,  and  the  parties 
enter  the  truce  upon  very  unequal  terms.  The  besieger, 
therefore,  may  properly  decline  to  yield  the  advantage 
which  he  has  fairly  earned,  by  permitting  provisions 
to  be  introduced  into  the  besieged  place.  To  avoid 
difficulty  and  misunderstanding,  it  is  always  desirable 
to  specify,  in  the  agreement,  what  particular  acts  may 
or  may  nob  be  done  during  its  continuance. 

A  General  Truce  or  Armistice  is  an  entire  suspen- 
sion of  arms  over  the  whole  theatre  of  military  opera- 
tions. They  are  made  by  the  belligerent  governments, 
or,  with  their  authority,  by  the  generals  commanding 
in  the  field,  and  include  within  their  scope  all  operations 
and  forces  of  whatever  character.  They  are  usually 
entered  into  when  the  issue  of  the  war  has  been  settled 
decisively  in  favor  of  one  of  the  belligerents,  and  with 


WAR.  255 

a  view  to  negotiations  for  peace.  These  agreements 
are  made  with  greater  formality  than  is  the  case  with 
special  truces,  and  describe,  in  considerable  detail,  what 
may  and  may  not  be  done  during  the  existence  of  the 
armistice.  They  are  binding  upon  all  forces,  both  mil- 
itary and  naval,  engaged  in  the  war  on  either  side. 
They  go  into  effect  from  the  date  of  signature,  and  be- 
come binding  upon  individuals  from  the  date  of  notifi- 
cation. In  naval  operations  some  time  is  necessary 
for  such  notification  to  reach  vessels  of  war  on  distant 
stations,  and  special  arrangements  are  made  in  such 
cases  to  regulate  the  disposition  of  captures  made  be- 
tween the  dates  of  negotiation  and  ratification. 

In  the  preparation  of  general  truces,  or  armistices, 
the  possible  resumption  of  hostilities  is  provided  for 
by  a  clause  terminating  the  truce  at  a  certain  date,  or 
upon  the  expiration  of  a  certain  notice.  On  the  date 
thus  agreed  upon  the  truce  ceases  to  have  obligatory 
force,  and  hostilities  are  resumed  by  both  belligerents. 

TREATIES  OF  PEACE. 

40.  Treaties  of  Peace  resemble  ordinary  treaties  in 
form,  in  the  detailed  method  of  preparation,  and  in  bind- 
ing force.  They  differ  from  ordinary  treaties,  and  from 
private  contracts,  in  respect  to  the  position  of  the  con- 
tracting parties,  who,  from  the  necessities  of  the  case, 
do  not  enter  them  upon  equal  terms.  This  in  no  re- 
spect detracts  from  their  obligatory  character,  which 
cannot  be  too  strongly  insisted  upon.  "Agreements 
entered  into  by  an  individual  while  under  duress  are 
void,  because  it  is  for  the  welfare  of  society  that  they 
should  be  so.  If  they  were  binding,  the  timid  would 
be  constantly  forced  by  threats  or  by  violence  into  a 


256  OUTLINES  OF  INTERNATIONAL  LAW. 

surrender  of  their  rights,  and  even  into  secrecy,  as  to 
the  oppression  under  which  they  were  suffering.  The 
[knowledge]  that  such  engagements  are  void  makes 
the  attempt  to  extort  them  one  of  the  rarest  of  human 
crimes.  On  the  other  hand,  the  welfare  of  society  re- 
quires that  the  engagements  entered  into  by  a  nation 
under  duress  should  be  binding ;  for,  if  they  were  not 
so,  wars  would  terminate  only  by  the  utter  subjugation 
and  ruin  of  the  weaker  party." 1 

"When  either  belligerent  believes  the  object  of  the 
war  to  have  been  attained,  or  is  convinced  that  it  is 
impossible  of  attainment ;  or  when  the  military  opera- 
tions of  either  power  have  been  so  successful  as  to  de- 
termine the  fortune  of  war  decisively  in  its  favor,  a 
general  truce  is  agreed  upon,  and  negotiations  are  en- 
tered into  with  a  view  to  the  restoration  of  peace. 
There  is  no  rule  of  positive  obligation  as  to  the  man- 
ner in  which  such  negotiations  shall  be  established. 
The  initiative  may  be  taken  by  either  belligerent, 
either  directly  with  the  hostile  state,  or  indirectly 
through  a  neutral  power.  A  neutral  state  may  tender 
its  good  offices  to  either  belligerent,  at  any  time  during 
the  continuance  of  hostilities.  The  purpose  of  the  pre- 
liminary negotiations  is  to  arrange  for  a  meeting  of 
duly  accredited  representatives  charged  with  the  prep- 
aration of  a  treaty  of  peace.  In  choosing  a  place  of 
meeting  a  point  may  be  selected  within  the  territory 
of  either  belligerent,  or  in  that  of  a  neutral  state.  If 
need  be,  a  preliminary  agreement  is  made,  guarantee- 

1  Senior,  in  vol.  Ixxvii.  of  the  Edinburgh  He-view,  p.  807;  cited  by 
Creasy,  pp.  41,  42.  See  also  Halleck,  vol.  i.,  pp.  260-266;  Phillimore, 
vol.  i.,  pp.  151-154;  Bluntschli,  p.  393;  Heffter,  §  179.  For  an  op- 
posite view,  see  Mommsen,  "History  of  Rome,"  vol.  i.,  p.  403. 


WAR.  257 

ing  the  neutrality  of  the  place  of  meeting,  and  the  per- 
sonal immunity  of  the  ambassadors. 

The  representatives  of  the  belligerent  states  meet  at 
the  time  and  place  agreed  upon,  and,  after  an  exchange 
of  full  powers,  enter  upon  the  task  of  preparing  the 
treaty  of  peace.  "When  substantial  agreement  has  been 
reached  as  to  the  general  terms  of  peace,  a  preliminary 
draft  or  treaty  is  sometimes  prepared,  containing  these 
provisions,  and  describing  the  questions  that  are  to  be 
deferred  for  final  settlement  in  the  permanent  treaty. 
The  preliminary  treaty  is  signed  and  duly  ratified  by 
the  contracting  parties.  If  the  war  has  been  carried 
on  by  allies  on  either  side,  no  one  of  them  is  justified, 
by  any  reason  less  strong  than  self-preservation,  in 
making  peace  without  the  consent  of  the  others,  or  in 
entering  into  a  treaty  prejudicial  to  the  common  inter- 
est of  the  allied  powers. 

Treaties  of  Peace,  when  Binding. — Treaties  of  peace 
become  binding  upon  the  signatory  powers  from  the 
date  of  signature.  They  bind  individuals  from  the  date 
of  notice.  If  the  war  has  been  carried  on  in  distant 
dependencies,  or  on  the  sea,  it  is  usual  to  stipulate  in 
the  treaty  for  the  restoration  of  captures  made  be- 
tween the  dates  of  signature  and  notification. 

Effects  of  Treaties  of  Peace. — The  cause  for  which 
the  war  was  undertaken  is  presumed  to  have  been  set- 
tled by  the  resort  to  arms,  and  by  the  amnesty  con- 
tained in  the  treaty.  This  is  the  case  whether  the 
state  which  was  the  aggressor  in  the  war  has  been  suc- 
cessful, or  not,  in  its  resort  to  force  to  obtain  redress. 
The  subjects  of  the  belligerent  states,  who  were  placed 
in  a  condition  of  non-intercourse,  and  of  legal  hostility, 
as  a  result  of  the  declaration  of  war,  are  restored  to 
17 


258  OUTLINES  OF  INTERNATIONAL  LAW. 

their  normal  relations.  Obligations  which  were  sus- 
pended, by  the  fact  of  war,  resume  their  force  with  the 
establishment  of  peace.  The  payment  of  public  and 
private  debts,  and  of  interest  upon  public  stocks,  is  re- 
sumed. 

Treatment  of  Occupied  Territory.  —  Questions  con- 
nected with  territory,  occupied  by  either  belligerent  at 
the  close  of  the  war,  are  finally  settled  by  the  terms  of 
the  treaty.  In  doing  this  some  status  is  assumed,  and 
this  may  be  that  existing  before  the  wrar,  or  at  its 
close ;  or  an  intermediate  status  may  be  chosen  that 
existed  at  some  instant  during  the  continuance  of  hos- 
tilities. The  details  of  evacuation  of  occupied  territory, 
fortresses,  and  ports  are  arranged  with  great  precision. 
If  the  treaty  contains  no  stipulations  as  to  occupied 
territory,  the  rule  of  uti  possidetis  prevails,  and  each 
belligerent  retains  the  territory  occupied  by  him  at 
the  close  of  the  war. 

The  rule  as  to  the  real  property  of  the  enemy  is  sub- 
stantially the  same  as  that  applied  to  territory.  Im- 
movable property,  belonging  to  either  belligerent, 
shares  the  fate  of  the  territory  in  which  it  is  situated, 
unless  otherwise  stipulated  in  the  treaty.  Forts,  arse- 
nals, dock-yards,  and  naval  ports,  the  surrender  or  evac- 
uation of  which  is  arranged  for  in  the  treaty,  are  trans- 
ferred in  the  condition  in  which  they  were  at  the  date  of 
the  treaty.  They  cannot  be  dismantled,  disarmed,  or 
destroyed,  but  no  obligation  exists  to  repair  them  after 
that  date,  even  when  such  repairs  are  necessary.  Mov- 
able property  of  the  enemy  in  the  hands  of  a  belliger- 
ent, at  the  date  of  the  treaty,  becomes  his  by  the  fact 
of  possession.  Contributions  levied,  but  not  collected, 
become  void  when  the  treaty  goes  into  effect ;  and  no 


WAR.  259 

new  contributions  or  requisitions  can  be  levied  by 
either  party,  without  the  express  authorization  of  the 
treaty.  The  right  to  levy  them  is  an  incident  of  bel- 
ligerency, and  ceases  at  the  termination  of  hostilities. 

If  a  portion  of  territory  be  ceded  by  either  party,  no 
guarantee  of  the  allegiance  of  the  population  of  the 
ceded  district  is  given  or  expected.  The  fact  that 
allegiance  is  based  upon  consent  is  now  so  generally 
recognized  in  such  transfers,  as  to  permit  individuals  to 
dispose  of  their  property  and  to  withdraw  to  their  native 
state,  when  the  territory  within  which  they  reside  has 
been  ceded  to  an  enemy  as  a  result  of  war  or  conquest. 

THE  RULES  OF  MAKITIME  CAPTURE. 
41.  The  rules  of  war  regarding  the  treatment  of 
private  property  on  land  have  been  characterized  by  a 
marked  and  constant  improvement  since  the  beginning 
of  modern  history.  To  appreciate  this  change  it  is  only 
necessary  to  compare  the  laws  of  war  on  land,  as  they 
are  now  understood,  with  the  barbarous  practices  that 
prevailed  during  the  Thirty  Years'  War,  or  even  with 
the  corresponding  usages  during  the  ISTapoleonic  wars 
at  the  beginning  of  this  century.  The  tendency  has 
been  to  give  to  war  on  land  the  character  of  an  armed 
contest  between  belligerent  governments,  restricting  its 
operations  and  effects  to  the  armed  forces  engaged  on 
either  side,  and  exempting  private  persons  and  private 
property  from  its  hardships  wherever  such  exemption 
has  been  possible.  There  has  been  no  such  general 
improvement  in  the  laws  having  to  do  with  the  treat- 
ment of  private  property  at  sea,  and  the  rules  regulat- 
ing maritime  capture  have  advanced  but  little  since 
they  were  codified,  more  than  eight  hundred  years. 


260  OUTLINES  OF  INTERNATIONAL  LAW. 

ago,  in  the  Consolato  del  Mare.  As  different  states 
have,  at  different  times,  obtained  undue  preponderance 
at  sea,  their  invariable  tendency  has  been  to  shape  the 
rules  of  maritime  capture,  rather  in  accordance  with 
their  views  of  temporary  policy  and  self-interest,  than 
in  accordance  with  the  demands  of  humanity  and  civ- 
ilization. As  a  motive  in  making  and  authorizing  such 
captures,  the  selfish  desire  for  booty  has  been  only  too 
apparent ;  easily  predominating  over  all  of  the  more  or 
less  plausible  reasons  that  have  been  alleged  in  favor 
of  the  practice.  From  time  to  time  proposals  have 
been  made  to  exempt  from  capture  at  sea  all  private 
property  not  contraband  of  war.  These  propositions 
have  never  been  favorably  received,  however,  and  there 
is  no  present  prospect  of  the  general  discontinuance  of 
a  practice,  as  unjust  in  principle  as  it  is  inefficient,  as 
a  means  of  redressing  an  international  wrong. 

Forces  that  may  be  Employed  in  Maritime  War. — 
The  force  that  may  be  employed  in  naval  operations 
has  already  been  described ;  it  may  consist  of  the  reg- 
ular naval  establishment  of  the  state,  supplemented  by 
such  volunteer  forces  as  may  be  deemed  necessary.  It 
may  also  consist  of  privateers.  In  time  of  war  no 
small  part  of  the  duty  of  the  naval  force  of  a  bellig- 
erent power  consists  in  the  exercise  of  the  right  of 
search,  in  the  maintenance  of  blockades,  and  in  effect- 
ing the  capture  of  enemy's  ships  and  goods  upon  the 
high  seas.  No  such  captures  are  legal,  or  can  be  made, 
except  with  the  direct  authorization  of  the  captor's 
state.  The  making  of  captures  without  such  author- 
ization constitutes  the  crime  of  piracy.  Captures  may 
be  made  upon  the  high  seas,  or  within  the  territorial 
waters  of  either  belligerent.  Captures  made  in  neutral 


WAR.  261 

waters  are  illegal,  and  must  be  restored,  with  suitable 
apology  and  reparation,  to  the  neutral  government 
whose  sovereignty  has  been  invaded. 

Definition  of  Prise. — The  term  prize  is  applied  to 
all  captures  of  property  made  at  sea.  The  term  ~booty 
is  applied  to  similar  captures  of  property  on  land. 

Title  to  Prize,  in  Whom  Vested. — The  title  to  the 
prize  first  vests  in  the  captor's  government,  and  the 
further  disposal  of  all  such  captures  is  regulated  by 
its  municipal  law.  The  capture  is  made  by  its  author- 
ity, and  upon  its  responsibility.  It  may  therefore 
make  such  disposition  of  its  prize  as  it  may  deem  best. 
It  may  convert  it  to  its  own  use,  or  cause  it  to  be  de- 
stroyed, or  sold ;  and  it  may  distribute  the  whole  or  a 
part  of  the  proceeds  of  the  sale  among  the  captors,  in 
accordance  with  the  provisions  of  its  municipal  law. 

There  has  been  some  difference  of  opinion  as  to  the 
precise  instant  when  the  title  to  a  prize  passes  from 
the  original  owner  and  vests  in  the  captor's  govern- 
ment. Three  rules  have  been  applied :  1.  The  twenty- 
four-hour  rule,  based  upon  twenty-four  hours  of  secure 
possession  on  the  part  of  the  captor.  2.  The  rule  of 
pernoctation,  according  to  which  the  prize  must  have 
been  in  possession  of  the  captor  during  the  period  be- 
tween sun  and  sun.  3.  The  rule  of  cessation  of  resist- 
ance, by  which  the  title  is  held  to  pass  to  the  captor 
when  armed  resistance  ceases,  and  the  flag  is  struck,  or 
a  voluntary  surrender  is  made.  This  rule  is  now  the 
one  most  generally  accepted. 

Duty  of  Captor. — It  is  the  first  duty  of  a  captor  to 
convey  his  prize  into  a  court  of  his  own  country  for 
adjudication.  In  former  times  he  was  permitted  to 
take  his  prize  into  a  neutral  port.  This  is  still  the  rule 


262  OUTLINES  OF  INTERNATIONAL  LAW. 

of  International  Law;  but  the  almost  invariable  prac- 
tice of  neutrals  in  recent  wars  has  been  to  forbid  such 
a  use  of  their  ports,  except  in  cases  of  distress  or  emer- 
gency. The  crews  of  enemy  merchant  vessels  captured 
on  the  high  seas  become  prisoners  of  war,  and  are  en- 
titled to  the  rights  guaranteed  to  that  class  by  the 
rules  of  war.  The  crews  of  captured  neutral  vessels 
cannot  be  regarded  as  prisoners  of  war.  They  are  sim- 
ply detained  subject  to  the  action  of  the  prize  court 
upon  the  ship,  on  board  of  which  they  are  employed. 
They  are  not  enemies,  and  are  not  subject  to  detention 
or  punishment.  ]STo  measures  of  severity  toward  them 
are  justifiable  except  in  cases  of  great  emergency,  and 
for  such  injuries,  when  shown  to  be  unnecessary,  prize 
courts  may  decree  damages  to  the  injured  parties. 

Yessels  captured  on  the  high  seas  are  sent  into  port 
under  charge  of  a  prize-master,  who,  with  an  adequate 
prize-crew,  is  placed  on  board  for  that  purpose.  It  is 
the  duty  of  the  prize-master  to  secure  the  ship  and 
goods  in  his  charge  from  spoliation  or  damage  during 
the  homeward  passage,  and  to  deliver  his  prize,  imme- 
diately upon  her  arrival,  into  the  legal  possession  of 
the  court  having  jurisdiction  over  the  case.  The  ship's 
papers,  log-book,  register,  sea-letters,  and  bills  of  lading 
are  sealed  by  the  commanding  officer  of  the  capturing 
vessel,  and  they,  with  two  or  more  members  of  the 
ship's  company,1  are  conveyed  into  port  by  the  prize- 
master,  and  are  delivered  with  the  prize  into  the  cus- 
tody of  the  court. 

The  practice  of  furnishing  prize  crews  tends  to  de- 
plete the  fighting  strength  of  the  captor,  and,  if  a 

1  One  of  whom  should  be  an  officer  when  practicable. 


WAR.  263 

number  of  captures  are  made,  a  time  must  come  when 
a  commander,  having  a  due  regard  to  the  safety  and 
efficiency  of  his  own  ship,  can  no  longer  make  such 
detachments  from  his  crew.  This  emergency  is  rec- 
ognized and  provided  for  by  the  law  of  nations,  and 
by  the  municipal  law  of  most  states,  which  authorize 
him  in  such  an  emergency  to  destroy  his  prize,  or  to 
accept  a  ransom.1  As  the  present  tendency  of  neutral 
states  is  to  close  their  ports  to  maritime  prizes,  such 
disposition  of  prizes  is  more  likely  to  increase  than  de- 
crease in  frequency.  The  practice  of  destroying  prizes 
has  been  objected  to,  but  rather  on  the  ground  of  hu- 
manity than  legality.  If  the  right  to  capture  enemy 
property  at  sea  be  admitted,  the  right  to  destroy  it 
follows  as  a  natural  consequence.  The  title  of  the 
original  owner  has  been  forcibly  divested  by  an  act  of 
war.  If  any  injury  has  been  inflicted  upon  the  bellig- 
erent, that  injury  consists  in  the  fact  of  capture,  which 
amounts  to  a  destruction  of  the  property,  in  so  far  as 
the  owner  and  his  government  are  concerned.  It  can 
matter  little  to  either  what  disposition  is  made  of 
the  property,  after  the  owner's  title  has  been  extin- 
guished. 

The  Ransom  of  Captured  Vessels. — Ransom  consists 
in  an  agreement  entered  into  between  a  captor  and 
the  master  of  a  captured  vessel,  acting  in  behalf  of  the 
owners,  by  which,  in  consideration  of  the  latter  bind- 

1  Abdy's  Kent,  p.  276.  "  If  the  prize  is  a  neutral  ship,  no  circum- 
stances will  justify  her  destruction  before  condemnation.  The  only 
proper  reparation  to  the  neutral,  in  such  a  case,  is  to  pay  him  the 
full  value  of  the  property  destroyed"  (Twiss,  "International  Law 
During  War,"  §167,  p.  331;  The  Felicity,  Dodson's  "Admiralty 
Reports, "vol.  ii.,  p.  386;  Boyd's  Wheaton,  pp.  432,  433). 


264  OUTLINES  OF  INTERNATIONAL  LAW. 

ing  himself  to  pay  a  stipulated  sum,  he  is  permitted  to 
continue  his  voyage,  by  a  specified  route,  to  a  certain 
port  of  destination.  The  instrument  containing  this 
agreement  is  called  a  Ransom  Contract,  and  when  reg- 
ularly made,  its  binding  force  is  recognized  by  the  law 
of  nations. 

The  Ransom  Contract  is  executed  in  duplicate,  one 
copy  being  retained  by  the  captor,  and  the  other  by 
the  master  of  the  captured  vessel,  to  whom  it  serves 
•las  a  safe-conduct  during  the  rest  of  his  voyage.  The 
precise  route  to  be  pursued  is  stated  in  the  contract, 
and  if  he  departs  from  it  he  is  liable  to  a  second  capt- 
ure. In  this  case  the  ransom  contract  constitutes  a 
prior  lien  upon  the  prize,  and  must  be  satisfied  out  of 
the  proceeds  of  the  sale,  the  remainder  only  being  de- 
creed to  the  second  captor.  The  copy  of  the  ransom 
contract  which  is  furnished  the  enemy  master  is,  in 
effect,  a  guarantee  against  capture,  by  another  cruiser 
of  the  captor's  state,  while  in  prosecution  of  the  voy- 
age described  in  the  agreement.  He  forfeits  what- 
ever protection  the  contract  gives  him  if  he  is  found 
out  of  the  course  therein  prescribed,  unless  driven 
from  it  by  stress  of  weather  or  other  evident  necessi- 
ty. The  contract  usually  specifies  that,  if  the  ship  is 
wrecked  on  the  high  seas,  or  by  the  perils  of  the  sea, 
the  instrument  is  void.  It  is  otherwise,  however,  in 
case  the  vessel  be  stranded,  or  wrecked  intentionally 
by  the  master.  "  If  the  captor,  after  having  ransomed 
an  enemy's  vessel,  is  himself  taken  by  the  enemy,  to- 
gether with  the  ransom  bill  of  which  he  is  the  bear- 
er, this  ransom  bill  becomes  a  part  of  the  capture 
made  by  the  enemy;  and  the  persons  of  the  hostile 
nation  who  Avere  debtors  of  the  ransom,  are  there- 


WAR.  265 

by  discharged  from  their  obligation  under  the  ransom 
bill."1  If  the  Kansom  Contract  has  been  conveyed 
to  the  captors  state,  or  to  a  place  of  safety,  prior  to 
capture,  it  retains  its  obligatory  character. 

Bansom  Contracts  constitute  one  of  the  exceptions 
to  the  rule  of  non-intercourse  between  enemies  in  war, 
and  a  suit  to  recover,  on  such  a  contract,  should  not 
be  barred  because  the  plaintiff  is  an  alien  enemy. 
The  intercourse  which  is  implied  by  the  negotiation 
of  such  an  instrument  is  a  recognized  necessity  of 
war,  and,  for  the  purpose  of  enforcing  his  legal  right, 
an  alien  enemy  should  be  recognized  as  having  a  legal 
standing  in  the  courts  of  the  debtor's  state.  Indeed, 
such  is  the  course  pursued  by  most  modern  states. 
England,  alone,  constitutes  an  exception  to  the  rule. 
"  The  English  courts  have  decided  that  the  subject  of 
an  enemy  is  not  permitted  to  sue  in  the  British  courts 
of  justice,  in  his  own  proper  person,  for  the  payment 
of  a  ransom,  on  the  technical  objection  of  the  want  of 
a  persona  stands  in  judicio,  but  that  the  payment 
could  be  forced  by  an  action  brought  by  the  im- 
prisoned hostage  in  the  courts  of  his  own  country  for 
the  recovery  of  his  freedom.  This  technical  objection 
is  not  based  upon  principle  nor  supported  by  reason, 
and  the  decision  has  not  the  sanction  of  general  usage."  * 

Hostages. — It  was  the  practice  in  former  times  to 
give  hostages  to  the  captor  as  additional  security  for 
the  payment  of  ransom.  They  were  conveyed  to  the 
captor's  country,  and  were  there  detained  as  prisoners 
until  the  ransom  was  paid.  They  were  not  always 

1  Halleck,  vol.  ii.,  p.  360. 

2  Halleck,  vol.  ii.,  p.  361;  Boyd's  Wheaton,  p.  476;  case  of  the 
Hoop,  Robinson's  "Admiralty  Reports,"  vol.  i.,  pp.  169,  201. 


266  OUTLINES  OF  INTERNATIONAL  LAW. 

treated  as  prisoners  of  war,  however,  but  were  at  times 
subjected  to  special  hardships  and  restrictions,  imposed 
upon  them  with  a  view  of  constraining  the  payment 
of  the  ransom  contract.  If  they  died  in  captivity  the 
ransom  contract  still  remained  binding,  as  they  were 
only  regarded  as  collateral  security  for  its  payment. 

Recapture  and  Postliminy. — When  a  prize  has  been 
made  at  sea,  it  has  been  seen  to  be  the  duty  of  the 
captor  to  send  it  to  a  port  of  his  own  country,  or  that 
of  an  ally,  for  adjudication.  In  the  prosecution  of  this 
voyage  it  is  liable  to  recapture,  and  a  question  arises 
as  to  its  ownership  in  such  a  case.  The  prize  has  been 
recaptured  by  an  armed  vessel  of  the  same  nationality 
as  the  original  owner ;  but  the  recapture,  in  so  far  as 
the  recaptor  is  concerned,  was  attended  by  the  same 
risk  and  danger  that  would  have  been  involved  in  an 
original  capture  of  the  same  vessel  from  the  enemy. 
The  captor  has  acquired  certain  rights  in  the  prize, 
and,  at  the  same  time,  the  title  of  the  original  owner 
to  the  property  has  been  to  a  certain  extent  revested. 
The  fiction  of  law  which  has  been  invented  to  adjust 
these  conflicting  claims  is  borrowed  from  the  Roman 
Law,  and  is  called  the  rule  of  postliminy.  It  was  ap- 
plied by  the  Romans  to  all  captures  of  persons  or 
property  made  by  an  enemy  in  war,  and  a  similar  rule 
applied  to  such  portions  of  the  public  territory  as 
passed  into  the  hands  of  an  enemy  as  the  result  of 
conquest.  The  title  to  captured  property  vested  in 
the  captor  so  long  as  it  remained  in  his  secure  posses- 
sion. As  prisoners  taken  in  war  became  the  slaves  of 
their  captors,  their  status  in  Rome,  as  freemen,  was 
suspended  during  captivity.  If  slaves  were  captured 
the  rule  of  property  applied.  "When  recaptured  from 


WAR.  267 

the  enemy  the  title  of  the  original  owner  was  re- 
vived, and  the  property  was  restored  to  him  on  pay- 
ment of  salvage.  A  person  who  was  recaptured  be- 
came, according  to  the  rule  of  war,  the  property  of 
his  recaptor;  but  the  law  permitted  him  to  resume 
his  freedom,  or  citizenship,  upon  the  payment  of  a 
specified  sum. 

The  modern  rule  of  postliminy  resembles  in  princi- 
ple the  rule  of  the  Eoman  Law,  although  it  is  more 
just  and  humane  in  its  application.  Persons  recapt- 
ured in  war  resume,  at  once,  all  their  personal  and 
property  rights.  Slavery  and  private  ransom  are  alike 
discountenanced  by  International  Law.  Property  re- 
captured from  an  enemy  on  land,  if  possible  of  identi- 
fication, reverts  to  its  owner  without  cost  or  payment. 
Property  recaptured  from  an  enemy,  at  sea,  is  restored 
to  its  original  owner ;  but  is  charged  with  the  payment 
of  a  reward  to  the  recaptor,  to  reimburse  him  for  the 
risk  incurred  and  the  service  rendered.  The  reward 
paid  to  recaptors  for  the  recovery  of  property  captured 
at  sea  is  called  salvage.  The  amount  of  salvage  to  be 
paid,  in  any  particular  case  of  recapture,  is  determined 
by  a  prize  court,  in  accordance  with  the  municipal  law 
of  the  recaptor's  state.  The  amount  of  salvage  award- 
ed varies  with  the  difficulty  of  recapture,  and  the  value 
of  the  prize.  It  depends  also  upon  the  character  of 
the  vessel  by  which  the  recapture  is  made,  the  award 
being  greater  in  the  case  of  a  privateer  or  merchant 
vessel  than  in  that  of  a  vessel  of  war;  none  being 
awarded  for  the  recapture  of  one  public  armed  vessel 
by  another.1  "In  general  no  salvage  is  due  for  the 

1  For  the  law  of  the  United  States  on  this  subject  see  §4652,  "  Re- 


268  OUTLINES  OF  INTERNATIONAL  LAW. 

recapture  of  neutral  vessels  and  goods,  upon  the  princi- 
ple that  the  liberation  of  a  bona  fide  neutral,  from  the 
hands  of  the  enemy  to  the  captor,  is  no  beneficial 
service  to  the  neutral,  inasmuch  as  the  same  enemy 
would  be  compelled,  by  the  tribunals  of  his  own  coun- 
try, to  make  restitution  of  the  property  thus  unjustly 
seized." 1 

As  recapture  is  possible  only  between  the  place  of 
original  capture  and  the  port  to  which  it  is  sent  by 
the  captor,  the  right  of  postliminy  exists  between  the 
same  limits  of  time  and  place.  The  title  of  the  orig- 
inal owner  is  finally  extinguished  by  the  action  of  the 
prize  court  in  decreeing  the  condemnation  and  sale  of 
the  captured  property ;  and  the  title  acquired  by  the 
purchaser  is  good,  even  against  the  original  owner  or 
his  government.  If  such  property  be  recaptured  after 
it  has  been  regularly  condemned  and  sold,  it  is  not  re- 
stored to  the  original  owner,  but  is  regarded  as  lawful 
prize,  and  is  treated  as  such.  England  furnishes  the 
only  exception  to  this  rule.  According  to  the  English 
law,  property  recaptured,  during  the  continuance  of  a 
war,  is  restored  to  its  owner  upon  payment  of  salvage, 
no  matter  how  long  it  has  been  in  the  enemy's  posses- 
sion, nor  through  how  many  hands  it  may  have  passed 
in  the  way  of  purchase  and  sale.  A  treaty  of  peace 
is  alone  held  to  confirm  and  perfect  the  title  to  capt- 
ures made  during  a  war. 

42.  Prize  Courts  and  their  Jurisdiction. — "Whenever 
a  capture  has  been  made  at  sea,  it  becomes  the  first 

vised  Statutes  of  the  United  States."    For  that  of  France,  England, 
Spain,  Portugal,  Denmark,  Sweden,  Holland,  see  Boyd's  Wheaton, 
pp.  442-450;  Hall,  p.  424. 
1  Boyd's  Wheaton,  p.  435. 


WAR.  269 

duty  of  the  captor  to  cause  it  to  be  conveyed  to  a  port 
of  his  own  country,  or  that  of  an  ally,  for  adjudication. 
The  municipal  laws  of  all  states  provide  special  tribu- 
nals whose  duty  it  is  to  determine  questions  of  prize. 
These  tribunals  are  called  Prise  Courts,  and  as  the  de- 
cision of  such  questions  is  an  incident  of  admiralty 
jurisdiction,  the  admiralty  courts  of  most  states  are 
given  jurisdiction  over  cases  of  maritime  capture.  This 
power  may  be  vested  in  these  courts  as  a  branch  of 
their  general  admiralty  jurisdiction,  or  jurisdiction 
may  be  conferred  upon  them,  by  special  commission 
during  a  particular  war.  The  former  practice  pre- 
vails iu.  the  United  States,  the  latter  now  prevails  in 
England.1 

Prize  courts  may  sit  in  the  ports  or  territory  of  a 
belligerent,  or  in  those  of  an  ally.  The}7  cannot  sit  in 
neutral  ports,  even  with  the  consent  of  the  neutral 
government,3  and  a  belligerent  would  justly  regard  the 
granting  of  such  permission  as  a  violation  of  neutral 
obligation.  This  arises  from  the  peculiar  jurisdiction 
of  these  tribunals.  Prize  courts  do  not  try  criminal 
cases,  or  determine  controversies  arising  between  indi- 
viduals. The  question  before  them  in  any  case  is, 
whether,  according  to  the  law  of  nations,  a  ship  and 
cargo  were  liable  to  capture,  and,  if  so,  whether  the 
capture  was  lawfully  made.  If  their  decision  be  in 
the  affirmative,  the  ship  and  cargo  are  condemned ;  if 
the  decision  be  in  the  negative,  they  are  -released.  In 
its  investigation  of  the  circumstances  of  the  capture, 
and  in  reaching  a  decree  of  condemnation,  the  court, 


1  3  and  4  Victoria,  chap.  65,  §  22. 

2  Boyd's  Wheaton,  pp.  455,  456;  Halleck,  vol.  ii.,  pp.  422,  423. 


2YO  OUTLINES  OF  INTERNATIONAL    LAW. 

to  a  certain  extent,  acts  in  behalf  of  the  state  under 
whose  authority  it  sits,  and  its  decree  fixes  upon  that 
government,  in  the  highest  degree,  the  responsibility  for 
the  seizure  and  condemnation  of  the  enemy's  property, 
or  contraband  goods.  Its  action,  therefore,  to  a  much 
greater  degree  than  is  the  case  with  ordinary  judicial 
proceedings,  constitutes  an  act  of  sovereignty,  and  for 
this  reason  it  cannot  perform  such  an  act  within  the 
jurisdiction  of  another  sovereign  state. 

The  Law  Applied  by  Prize  Courts.  —  In  deciding 
cases  of  maritime  capture  prize  courts  apply  the  rules 
of  international  rather  than  municipal  law.  For  this 
reason  decisions  in  similar  cases,  rendered  by  the  prize 
courts  of  other  states,  are  regarded  by  them  as  consti- 
tuting precedents  of  a  binding  character.  "Prize 
courts  are  in  no  way  bound  to  regard  local  ordinances 
and  municipal  regulations,  unless  they  are  sanctioned 
by  the  law  of  nations.  Indeed,  if  such  ordinances  and 
regulations  are  in  contravention  of  the  established 
rules  of  international  jurisprudence,  prize  courts  must 
either  violate  their  duty,  or  entirely  disregard  them. 
They  are  not  binding  on  the  prize  courts,  even  of  the 
country  by  which  they  are  issued.  The  stipulations 
of  treaties,  however,  are  obligatory  upon  the  nations 
which  have  entered  into  them,  and  prize  courts  must 
observe  them  in  adjudicating  between  subjects  or  citi- 
zens of  the  contracting  parties." ' 

Procedure  in  Prize  Cases. — The  principles  of  prize, 
as  at  present  applied  to  maritime  captures,  are  almost 
identical  with  the  provisions  of  the  Koman  Law  on 

1  Halleck,  vol.  ii.,  p.  433;  case  of  the  Maria,  Robinson's  "Admi- 
ralty Reports,"  vol.  i.,  p.  340;  Phillimore,  vol.  iii.,  pp.  648,  649; 
Creasy,  pp.  556,  557;  Twiss,  pp.  335-340;  Manning,  p.  472. 


WAR.  271 

the  same  subject.  "  The  allegations,  proofs,  and  pro- 
ceedings are,  therefore,  in  general  modelled  upon  the 
Civil  Law,  with  such  additions  and  alterations  as  the 
practice  of  nations  and  the  rights  of  belligerents  and 
neutrals  unavoidably  impose.  .  .  .  Not  only  the  pro- 
ceedings, but  also  the  rules  of  evidence,  are,  in  many  re- 
spects, different  from  those  of  courts  of  common  law ; 
and  prize  courts  not  only  decide  upon  the  claims  of 
captors,  but  also  upon  their  conduct  in  making  the 
capture,  and  subsequently,  and  not  infrequently,  declare 
a  forfeiture  of  their  rights  with  vindictive  damages. 

"  In  prize  causes  the  evidence  to  convict  or  condemn 
must  come,  in  the  first  instance,  from  the  papers  and 
crew  of  the  captured  ship.  It  is  the  duty  of  the  cap- 
tors to  bring  the  ship's  papers  into  the  registry  of  the 
district  court,  verify  them  on  oath,  and  to  have  the 
examinations  of  the  principal  officers  and  seamen  of 
the  captured  ship  taken  on  the  standing  interrogato- 
ries, and  not  viva  voce.  It  is  exclusively  upon  these 
papers  and  examinations  that  the  cause  is  to  be  heard 
in  the  first  instance.  If,  from  this  evidence,  the  prop- 
erty clearly  appears  to  be  hostile  or  neutral,  condem- 
nation or  restitution  immediately  follows.  If  the 
property  appears  to  be  doubtful,  or  the  case  suspi- 
cious, further  proof  may  be  granted  according  to  the 
rules  which  govern  the  legal  discretion  of  the  court, 
if  the  claimant  has  not  forfeited  his  right  to  it  by  a 
breach  of  good  faith.  .  .  .  Where  the  national  character 
does  not  distinctly  appear,  or  where  the  question  of 
proprietary  interest  is  left  in  doubt,  further  proof  is 
usually  ordered." ' 

1  Halleck,  vol.  ii.,  pp.  435,  436. 


272  OUTLINES  OF  INTERNATIONAL  LAW. 

The  common-law  doctrines,  as  to  the  competency  of 
witnesses,  are  not  applicable  to  prize  proceedings.  No 
person  is  incompetent  in  those  courts  merely  on  the 
ground  of  interest.  His  testimony  is  admissible,  sub- 
ject to  all  exceptions  as  to  its  credibility.1  The  rule 
that  the  testimony,  for  the  condemnation  of  a  prize, 
must  be  obtained,  in  the  first  instance,  directly  from 
documents  or  witnesses  found  on  board  the  vessel  at 
the  time  of  her  seizure,  is  always  adhered  to,  unless 
satisfactory  reasons  are  shown  for  departing  from  it 
in  a  particular  instance.* 

Right  of  Appeal  in  Prize  Cases. — The  right  of  ap- 
peal is  invariably  recognized  in  the  laws  creating  prize 
courts  and  defining  their  jurisdiction ;  and,  on  account 
of  the  importance  of  the  interests  involved,  special 
provision  is  frequently  made  to  enable  prize  cases  to 
be  carried  up,  by  way  of  appeal,  to  a  court  of  last  re- 
sort, in  a  much  shorter  time  than  is  usual,  and  without 
passing  through  any  of  the  courts  intervening  between 
those  of  original  and  final  jurisdiction.  The  laws  of 
the  United  States  provide  for  this  contingency  by  per- 
mitting an  appeal  to  be  taken  directly  to  the  Supreme 
Court,  from  the  District  Courts,  which,  in  the  United 
States,  have  original  jurisdiction  in  all  cases  of  mari- 
time capture. 

Rules  for  Determining  the  Nationality  of  Ships  and 
Goods. — It -has  been  seen  that,  in  the  determination  of 
a  question  of  prize,  the  decision  will  depend  upon 
whether  the  property  seized  has,  or  has  not,  the  enemy 
character.  To  determine  questions  thus  arising,  as  to 

1  The  Anne,  Wheaton,  vol.  iii.,  p.  435. 

2  The  Zavalla,  Blatchf ord,  "Prize  Cases, "p.  173;  The  Jane  Camp- 
bell, Blatchford,  "Prize  Cases, "p.  101. 


WAR.  273 

the  nationality  of  ships  and  goods,  certain  rules  are 
recognized  by  the  prize  courts  of  all  nations.  The  more 
important  of  them  are — 

(a.)  The  nationality  of  ships  and  goods  is,  in  general, 
determined  by  the  domicile  of  their  owner.  Those 
owned  by  one  domiciled  in  a  hostile  country  are  ene- 
my goods ;  those  owned  by  one  having  a  domicile  in 
a  neutral  state  are  neutral  goods. 

(b.)  The  products  of  hostile  soil,  and  articles  manu- 
factured in  enemy's  territory,  are  hostile,  by  whomso- 
ever owned. 

(c.)  The  share  of  a  neutral  partner,  in  a  firm  having 
a  hostile  domicile,  is  hostile. 

(d.)  If  an  owner  of,  or  partner  in,  a  business  situated 
in  a  neutral  state,  has  himself  a  hostile  domicile,  his 
share  in  the  neutral  house  is  regarded  as  enemy  prop- 
erty. 

(e.)  A  neutral  sailing  under  the  enemy  flag,  or  car- 
rying his  register,  or  license  to  trade,  is  regarded  as  an 
enemy. 

(y.)  The  nationality  of  goods  is  determined  by  their 
ownership  at  the  instant  of  capture ;  a  change  made 
in  ownership  after  that  date  is  not  recognized. 

(g.)  "  Vessels  of  discovery,  or  of  expeditions  of  ex- 
ploration and  survey,  sent  for  the  examination  of  un- 
known seas,  islands,  and  coasts,  are,  by  general  consent, 
exempt  from  the  contingencies  of  war,  and  are  there- 
fore not  liable  to  capture.  Like  the  sacred  vessel  which 
the  Athenians  sent  with  their  annual  offerings  to  the 
temple  of  Delos,  they  are  respected  by  all  nations,  be- 
cause their  labors  are  intended  for  the  benefit  of  all 
mankind.  It  has  been  the  invariable  practice  of  Eu- 
ropean powers  to  grant  safe-conducts  to  ships  sent  to 
18 


274  OUTLINES  OF   INTERNATIONAL  LAW. 

explore  the  Arctic  regions,  against  being  captured  by 
ships  of  war  on  their  return,  in  the  event  of  war  break- 
ing out  during  such  absence." ' 

(A.)  "  Fishing-boats  have  also,  as  a  general  rule,  been 
exempted  from  the  effects  of  hostilities.  As  early  as 
1521,  while  war  was  raging  between  Charles  V.  and 
Francis  I.,  ambassadors  from  these  two  sovereigns  met 
at  Calais,  then  English,  and  agreed  that,  whereas  the 
herring  fishery  was  about  to  commence,  the  subjects 
of  both  belligerents  engaged  in  this  pursuit  should  be 
safe  and  unmolested  by  the  other  party,  and  should 
have  leave  to  fish  as  in  time  of  peace.  In  the  war  of 
1800  the  British  and  French  governments  issued  formal 
instructions  exempting  the  fishing-boats  of  each  other's 
subjects  from  seizure." * 

References. — For  the  definition  and  causes  of  war,  see  Halleck, 
vol.  i.,  chaps,  xv.  and  xvi. ;  Heffter,  §§  105-113 ;  Kliiber,  §§  231-237 ; 
Creasy,  pp.  360-394 ;  G.  F.  De  Martens,  liv.  viii.,  chap,  iii.,  §§  263- 
265 ;  Yattel,  book  iii.,  chap,  i.,  §§  1-3 ;  Phillimore,  vol.  iii.,  pp. 
77-84.  For  the  rales  and  usages  of  war,  see  Vattel,  book  iii., 
chap,  ii.,  §§6-23;  chap,  viii.,  §§136-159;  chap,  ix.,  §§166-173; 
Heffter,  §§  123-129 ;  Halleck,  chaps,  xviii.-xx. ;  Hall,  chaps,  ii.  and 
vii. ;  "  La  Guerre  Actuelle,"  by  C.  F.  Rolin-Jacquemyn ;  JSevue  de 
Droit  International,  vol.  ii.  (1870),  pp.  643-720  (series);  Rivier, 
"Manuel  des  Lois  de  la  Guerre;"  Dr.  Lieber  "Instructions"  (Hal- 
leck, vol.  ii.,  pp.  36-51) ;  "  Rules  of  the  Brussels  Conference," 
Boyd's  Wheaton,  pp.  476-483.  For  the  rules  as  to  the  treatment 
of  property  on  land,  see  Vattel,  book  iii.,  chap,  v.,  §§  69-77; 
chap,  ix.,  §§  160-173;  Heffter,  §§  127-140;  Halleck,  chap.  xxi. ; 
Hall,  part  iii.,  chap.  iii. ;  Bluntschli,  "  Le  Droit  de  Butin  en 
G6n6ral  et  SpScialement  du  Droit  de  Prise  Maritime ;"  Revue  de 
Droit  International,  vol.  ix.,  pp.  544-549.  For  the  subject  of  tem- 
porary occupation,  see  Hall,  part  iii.,  chap,  iv.,  §§  153-161 ;  Halleck, 

1  Halleck,  voL  ii.,  pp.  149-151.  9  Ibid.,  pp.  151, 152. 


WAR.  275 

vol.  ii.,  chaps,  xxxiii.  and  xxxiv. ;  Heffter,  §  185  ;  Kliiber,  §  265  ; 
Boyd's  Wheaton,  §346;  Creasy,  pp.  483-495,  and  pp.  503-516. 
See  also  "Report  of  the  Brussels  Conference,"  Boyd's  Wheaton, 
p.  476,  "  Parliamentary  Papers,  Miscellaneous,"  1875,  No.  1 ;  De 
Martens,  §  282  b.  For  the  subject  of  requisitions  and  contributions, 
see  Creasy,  p.  518-535 ;  "  Report  of  the  Brussels  Conference,"  "  Par- 
liamentary Papers,  Miscellaneous,"  1875,  No.  1 ;  G.  F.  De  Martens, 
§280;  Halleck,  vol.  ii.,  chap,  xvi.,  §§  15-37 ;  Hall,  §§  140-142 ;  Vat- 
tel,  book  iii.,  chap,  ix.,  §§  160-166.  For  maritime  capture,  see  Hal- 
leck, vol.  ii.,  chap,  xxii.,  §§  1-24;  chap,  xxxi;  Hall,  part  iv.,  chap, 
iii.,  §§  143-152 ;  chap,  vi.,  §§  167-175 ;  Manning,  chap.  v. ;  Heffter, 
§§137-139;  Nys,  "La  Guerre  Maritime;"  Dahlgren,  "Interna- 
tional Law;"  Wheaton,  "History  of  the  Law  of  Nations;"  Blunt- 
schli,"  Le  Droit  cle  Butin  en  General  et  Spe"cialenient  clu  Droit  de 
Prise  Maritime ;"  Phillimore,  vol.  iii.,  pp.  559-647.  For  the  pro- 
cedure of  prize  courts,  see  Halleck,  vol.  ii.,  chaps,  xxxi.  and  xxxii. ; 
Manning,  chap.  xiii. ;  Phillimore,  vol.  iii.,  part  xi.,  pp.  648-769 ; 
Bulmerincq,  "  Le  Droit  de  Prises  Maritime ;"  Revue  de  Droit  In- 
ternational, vol.  x.  and  xi. ;  Bluntscbli,  "  Le  Droit  de  Butin  en 
GSugral  et  Specialement  du  Droit  de  Prise  Maritime ;"  Revue  de 
Droit  International,  vol.  ix.  aiid  x. ;  Nys,  "  La  Guerre  Maritime," 
chap.  vii. 


CHAPTEE  XL 

NEUTRALITY. THE   EIGHTS   AND   DUTIES   OF   NEUTRALS. 

1.  The  term  neutrality  is  applied  to  the  relation  ex- 
isting between  the  states  which  are  parties  to  a  war 
and  those  which  refrain  from  taking  part  in  its  opera- 
tions, either  as  belligerents  or  allies. 

A  neutral  state  is  one  which  wholly  abstains  from 
participation  in  an  existing  war,  rendering  no  aid  or 
service  to  either  belligerent  in  his  military  operations. 

Character  of  the  Neutral  Relation.  —  In  strictness, 
the  relations  existing  between  two  states,  at  any  time, 
must  be  either  those  of  peace  or  war.  International 
Law  recognizes  no  intermediate  condition.  When  a 
state  occupies  the  position  of  a  neutral  it  simply  un- 
dertakes to  maintain,  without  interruption,  its  peace- 
ful relations  with  both  belligerents.  The  maintenance 
of  such  relations  is,  of  course,  more  difficult  in  war 
than  in  time  of  profound  peace ;  and  to  this  end  a  neu- 
tral state  finds  itself  obliged  to  take  such  precautions, 
within  its  territorial  limits,  as  will  guarantee  the  con- 
tinuance of  such  friendly  relations.  For  the  same  pur- 
pose it  has  recourse  to  such  positive  measures  as  will 
secure  immunity  from  acts  of  belligerency  within  its 
territory,  and  compel  respect  for  its  sovereignty  and 
independence. 

2.  History  of  Neutrality. — The  rules  of  neutral  ob- 
ligation are  of  relatively  recent  growth,  and,  in  their 
present  form,  are  largely  the  result  of  a  compromise  be- 


NEUTRALITY.  277 

tween  the  conflicting  rights  and  interests  of  belligerents 
and  neutrals.  In  ancient  times  the  very  conception  of 
neutrality  was  impossible.  So  long  as  one  powerful 
state  aspired  to  or  claimed  universal  dominion,  it  was 
impossible  for  other  and  less  powerful  states  to  main- 
tain that  separate,  independent  existence  which  is  es- 
sential to  the  recognition  of  state  rights,  and  so  to  the 
development  of  a  true  theory  of  neutrality.  War, 
among  the  ancients,  was  the  normal  state  of  mankind, 
in  which  all  nations  participated,  either  as  principals 
or  allies.  Had  any  ancient  state  attempted  to  occupy 
a  position  remotely  resembling  that  of  neutrality,  ac- 
cording to  the  modern  acceptation  of  the  term,  and 
had  it  attempted  to  compel  respect  to  its  neutral  rights, 
the  belligerent  against  whom  the  attempt  was  made 
would  have  regarded  it  as  an  act  of  war,  and  would 
have  governed  itself  accordingly.  This  state  of  affairs 
continued  until  the  modern  idea  of  state  sovereignty 
and  territorial  independence  began  to  be  generally  rec- 
ognized toward  the  close  of  the  Middle  Ages. 

The  Origin  and  Development  of  the  Neutral  The- 
ory.— The  theory  of  neutrality  is  based  upon,  and  de- 
duced from,  the  conception  of  a  number  of  sovereign 
states,  or  political  communities,  each  enjoying  a  sepa- 
rate existence,  and  each  recognizing  the  separate  and 
independent  existence  of  every  other.  Such  condi- 
tions were  fulfilled  by  the  Mediterranean  cities  that 
participated  in  the  revival  of  commerce,  toward  the 
close  of  the  period  of  the  Dark  Ages ;  and  it  was  among 
them  that  the  modern  theory  of  neutrality  was  devel- 
oped. The  first  conception  of  neutral  right  to  acquire 
general  recognition  among  them  seems  to  have  consist- 
ed in  the  idea  that,  at  the  outbreak  of  war  between  any 


278  OUTLINES  OF  INTERNATIONAL  LAW. 

two  cities,  the  commerce  of  the  rest,  who  remained 
friendly  to  the  belligerents,  as  it  in  no  way  concerned 
the  hostile  cities,  should  undergo  the  least  possible  in- 
terruption. Out  of  this  immunity  grew  the  idea  of 
the  exemption  of  neutral  or  friendly  goods  from  capt- 
ure in  time  of  war. 

These  cities  were  either  independent  communities,  or 
were  situated  in  separate  states,  and  commercial  rela- 
tions had  become  so  firmly  established  among  them 
by  the  close  of  the  eleventh  century,  as  to  warrant  the 
preparation  of  a  code  of  Sea  Laws  containing  their 
common  maritime  usages.  The  earliest  of  these  codes, 
the  Consolato  del  Mare,  recognized  the  distinction  be- 
tween the  property  of  friends  and  enemies  in  war,  and 
declared  that  the  .former  was  exempt  from  capture  and 
confiscation,  even  when  found  on  an  enemy's  vessel. 
If  such  property  were  delivered  at  its  destination, 
freight  was  due  to  the  belligerent  captor  who  effected 
the  delivery.  Similar  provisions  were  contained  in  the 
later  Sea  Laws;  indeed,  so  long  as  maritime  com- 
merce was  controlled  by  the  cities  of  southern  and 
western  Europe,  the  treatment  of  neutral  property  at 
sea  was  marked  by  extreme  liberality. 

The  cities  that  were  identified  with  the  revival  of 
commerce  engaged  in  such  pursuits  for  purely  merce- 
nary reasons.  They  were  rivals  in  commerce  only, 
and  none  of  them  aspired  to  territorial,  as  distinguished 
from  commercial,  dominion.  Their  commercial  rivalry 
was  keen,  however,  and  some  of  them  asserted  claims 
to  the  exclusive  control  of  certain  waters  for  purposes 
of  trade.  Conflicts  of  interest  thus  arose,  which,  at 
times,  resulted  in  war ;  but  as  their  commercial  inter- 
ests were,  on  the  whole,  of  the  first  importance,  their 


NEUTRALITY. 

relations  were  more  generally  peaceful  than  hostile. 
Upon  the  outbreak  of  war  the  greater  number  of  cit- 
ies found  it  to  be  to  their  interest  to  refrain  from 
participation  in  its  operations,  and  to  continue  their 
friendly  relations  with  both  belligerents.  The  rela- 
tions of  the  non-belligerent,  or  neutral,  cities  with  each 
other  underwent  no  change.  They  were  at  peace,  and 
simply  maintained,  without  interruption,  their  ordina- 
ry commercial  intercourse.  As  the  greater  number  of 
these  cities  were  usually  at  peace,  it  is  easy  to  see  that 
it  was  to  the  general  interest  that  their  commercial 
relations  should  suffer,  during  war,  the  least  possible 
interruption.  The  necessity  of  combining  to  protect 
their  merchant-vessels  from  the  depredations  of  pirates 
must  have  suggested  to  them,  at  a  relatively  early  date, 
the  desirability  of  similar  concerted  action  to  secure  a 
like  immunity  from  acts  of  belligerency,  and  to  com- 
pel respect  for  their  neutral  rights. 

The  Rule  of  the  Consolato  del  Mare. — Out  of  this 
state  of  international  relations  grew  the  rule  of  the 
Consolato  del  Mare,  that  enemy  goods  were  liable  to 
capture,  and  neutral  goods  were  exempt  from  capture, 
wherever  found.  This  rule  was  generally  accepted 
by  the  commercial  cities,  and,  later,  by  the  European 
powers.  With  occasional  interruptions,  due,  in  great 
part,  to  treaty  stipulations,  it  continued  to  be  the  most 
generally-accepted  rule  upon  the  subject  of  the  liability 
of  property  to  capture  at  sea,  until  the  adoption  of  the 
more  liberal  rule  of  the  Declaration  of  Paris,  in  1856. 

General  Acceptance  of  the  Rule  of  the  Consolato  del 
Mare. — England  adopted  the  rule  at  the  organization 
of  its  admiralty  courts  during  the  reign  of  Edward 
III.,  and  has  consistently  maintained  it  during  her  sub- 


280  OUTLINES  OF   INTERNATIONAL  LAW. 

sequent  history.  In  a  small  number  of  treaties,  made 
during  the  seventeenth  and  eighteenth  centuries,  the 
English  government  conceded  the  principle  that  free 
ships  make  free  goods ;  but  these  concessions  were  of 
a  temporary  character,  and  in  nearly  all  cases  were 
terminated  by  a  positive  disavowal  of  the  milder  rule. 
France,  after  observing  the  rule  of  the  Consolato  for 
nearly  five  hundred  years,  repudiated  it  in  the  Mari- 
time Ordinances  of  1681.  By  that  instrument  the  rule 
of  capture  was  stated  to  be,  that  the  goods  of  an  enemy 
in  a  neutral  vessel,  and  the  goods  of  a  friend  in  an  en- 
emy's vessel,  were  alike  liable  to  capture ;  thus  estab- 
lishing the  rule  that  enemy  ships  make  enemy  goods. 
This  continued  to  be  the  practice  of  France,  subject  to 
some  modification  in  her  conventional  law,  until  the 
Declaration  of  Paris.  The  practice  of  Spain,  during 
the  period  of  her  maritime  supremacy,  was  similarly 
severe.  The  policy  of  the  United  States,  as  indicated 
in  the  decisions  of  the  Supreme  Court,  has  been  sub- 
stantially the  same  as  that  of  England.  "  The  two 
distinct  propositions,  1.  That  enemy's  goods,  found  on 
board  a  neutral  ship,  may  lawfully  be  seized  as  prize 
of  war ;  and,  2.  That  the  goods  of  a  neutral,  found  on 
board  of  an  enemy's  vessel,  are  to  be  restored,  have 
also  been  explicitly  incorporated  into  the  jurispru- 
dence of  the  United  States,  and  declared  by  the  Su- 
preme Court  to  be  founded  on  the  law  of  nations. 
The  rule,  it  was  observed  by  the  court,  rested  on  the 
simple  and  intelligible  principle  that  war  gave  a  full 
right  to  capture  the  goods  of  an  enemy,  but  gave  no 
right  to  capture  the  goods  of  a  friend.  The  neutral 
flag  constituted  no  protection  to  enemy's  property, 
and  the  belligerent  flag  communicated  no  hostile  char' 


NEUTRALITY.  281 

acter  to  neutral  property.  The  character  of  the  prop- 
erty depended  upon  the  fact  of  ownership,  and  not 
upon  the  character  of  the  vehicle  in  which  it  was 
found.  Nations,  indeed,  had  changed  this  simple  and 
natural  principle  of  public  law  by  conventions  between 
themselves,  in  whole  or  in  part,  as  they  believed  it  to 
be  for  their  interest ;  but  the  one  proposition,  that  free 
ships  should  make  free  goods,  did  not  necessarily  im- 
ply the  converse  proposition,  that  enemy's  ships  should 
make  enemy's  goods.  If  a  treaty  established  the  one 
proposition,  and  was  silent  as  to  the  other,  the  other 
stood  precisely  as  if  there  had  been  no  stipulation,  and 
upon  the  ancient  rule." '  The  policy  of  the  different 
departments  of  the  United  States  government  upon  the 
question  of  maritime  capture  has  not  been  the  same. 
The  courts  of  the  United  States,  being  to  some  extent 
controlled  by  the  English  precedents  in  prize  cases, 
have,  in  the  main,  followed  the  English  rule.  The  po- 
litical departments,  on  the  other  hand,  have  constantly 
endeavored  to  secure  the  greatest  possible  immunity 
from  capture  for  private  property  at  sea,  and  to  that 
end  have  endeavored  to  obtain,  by  treaty  and  other- 
wiso,  international  consent,  not  only  to  the  rule  that 
free  ships  make  free  goods,  but  that  all  private  prop- 
erty at  sea,  not  contraband  of  war,  should  be  exempt 
from  capture  and  confiscation  in  time  of  war." 

3.  The  Principle  of  Free  Ships,  Free  Goods. — The 
principle  thai  free  skips  make  free  goods  was  first  rec- 

1  The  Nereide,  Cranch,  vol.  ix.,  pp.  388-395,  428,  cited  by  Philli- 
more,  vol.  iii.,  pp.  317,  318. 

8  The  principle  of  free  ships,  free  goods,  was  incorporated  in  the 
treaties  between  the  United  States  and  France  in  1778  and  1800;  with 
the  United  Provinces  in  1782;  with  Sweden  in  1783, 1816,  and  1827; 
with  Prussia  in  1785  and  1828;  with  Spain  in  1795. 


282  OUTLINES  OF  INTERNATIONAL  LAW. 

ognized  by  Holland  during  the  early  part  of  the  seven- 
teenth century,  and  was  the  result  of  the  peculiar  situ- 
ation of  that  state  as  a  European  power.  Its  military 
strength  on  land  was  far  less  in  amount  than  that  of 
the  great  states  by  which  it  was  surrounded,  and  was 
never  more  than  sufficient  to  the  task  of  securing  its 
independent  political  existence.  The  contrary,  how- 
ever, was  the  case  at  sea,  where  the  maritime  power 
of  the  republic  was  exceeded,  if  at  all,  by  that  of  Eng- 
land alone.  The  maintenance  of  its  position  as  a  mar- 
itime and  commercial  power  thus  became  a  matter  of 
the  first  importance,  and  was  so  recognized  by  the  suc- 
cession of  able  statesmen  who  directed  the  state  pol- 
icy of  the  United  Provinces  during  the  seventeenth 
and  eighteenth  centuries.  Having  but  little  military 
strength,  it  was  desirable  that  Holland  should  remain 
neutral  in  all  European  wars.  It  was  still  more  desi- 
rable, however,  that  its  immense  carrying  trade  should 
be  exempt  from  the  effects  of  war  at  sea.  But  this 
exemption  could  only  be  obtained  by  securing  the 
adoption  of  the  rule  that  free  ships  made  free  goods, 
as  the  rule  then  prevailing  was  that  of  the  Consolato 
del  Mare,  by  which  the  ownership  of  property  deter- 
mined its  liability  to  capture.  For  the  adoption  of  a 
new  rule  on  the  subject  of  maritime  capture  the  gen- 
eral consent  of  nations  was  necessary,  and  that  consent 
could  only  be  obtained  by  treaty  stipulations.  The 
efforts  of  the  Dutch  government  were  therefore  direct- 
ed to  that  end,  and,  as  a  result,  a  number  of  treaties 
were  negotiated  in  which  the  rule  of  free  ships,  free 
goods,  was  recognized,  and  the  liability  to  capture  was 
determined  by  the  nationality  of  the  vessel,  and  not  by 
the  ownership  of  the  goods,  as  in  the  ancient  rules. 


NEUTRALITY.  283 

As  Holland  was  more  generally  neutral  than  bellig- 
erent, the  adoption  of  the  latter  principle,  in  its  fullest 
extent,  would  be,  in  the  main,  advantageous  to  her 
interests.  She  would  gain  more,  as  a  neutral,  by  the 
adoption  of  the  rule  of  free  skips,  free  goods,  than  she 
would  lose,  as  a  belligerent,  by  the  adoption  of  the  rule 
of  enemy  ships,  enemy  goods.  For  this  reason,  in  some 
of  her  treaties  both  of  these  principles  were  connected, 
and  the  liability  of  merchandise  to  capture  on  the  high 
seas  was  determined  by  the  nationality  of  the  vessel, 
rather  than  by  the  ownership  of  the  cargo.1  The  prin- 
ciple of  free  ships,  free  goods,  was  accepted  by  many  of 
the  less  important  commercial  states  of  Europe.  It 
was  generally  adopted  by  the  Baltic  powers,  by  France, 
in  the  Treaty  of  Ryswick,  in  1657,  and  even  by  England, 
in  a  few  treaties  negotiated  between  the  years  1658 
and  1756.  From  the  year  1715  onward,  the  maritime 
importance  of  Holland  steadily  declined ;  and  as  that 
state  was  no  longer  directly  interested  in  the  mainte- 
nance of  the  new  rule,  the  treaties  upon  which  it  had 
been  based  were  not  renewed,  or  were  suffered  to  lapse ; 
and  it  appeared  less  frequently  in  the  new  treaties 
which  were  negotiated,  from  time  to  time,  upon  the 
subject  of  maritime  capture.  From  the  Peace  of  Par- 
is, in  1763,  until  the  outbreak  of  the  Crimean  War,  in 
1853,  the  maritime  preponderance  of  England  was  suf- 
ficient to  prevent  the  general  adoption  of  any  principle 
of  capture,  more  liberal,  or  less  severe,  than  that  con- 
tained in  the  rule  of  the  Consolato  del  Mare,  the  justice  of 
which  the  British  government  had  always  maintained. 

At  the  outbreak  of  the  Crimean  War  the  British 

1  For  lists  of  these  treaties  see  Phillimore,  vol.  iii.,  pp.  824  etseq. 


284  OUTLINES  OF  INTERNATIONAL  LAW. 

government  announced  that,  for  the  period  of  that 
war,  it  would  "waive  the  right  of  seizing  enemy's 
property  laden  on  board  a  neutral  vessel,  unless  it  be 
contraband  of  war."  A  similar  waiver  was  made  by 
the  French  government.  In  both  cases  the  conces- 
sion was  declared  to  be  due  to  a  desire  to  render  the 
war  "  as  little  onerous  as  possible  to  the  powers  with 
which  they  remained  at  peace." l 

4.  The  Declaration  of  Paris. — The  Treaty  of  Paris, 
which  terminated  the  Crimean  War,  was  signed  on 
March  30,  1856.  The  representatives  of  the  powers 
that  had  been  parties  to  the  treaty,  at  the  sugges- 
tion of  Count  Walewski,  the  French  plenipotentiary, 
assembled  in  conference  for  the  purpose  of  discussing 
the  rules  of  maritime  capture,  and,  on  the  16th  of 
April  following,  adopted  a  body  of  rules  modifying 
the  existing  rules  of  capture,  which  has  since  been 
known  as  the  Declaration  of  Paris.  The  rules  adopt- 
ed were  four  in  number : 

(«.)  Privateering  is,  and  remains,  abolished. 

(b.)  The  neutral  flag  covers  enemy's  goods,  with  the 
exception  of  contraband  of  war. 

(<?.)  Neutral  goods,  with  the  exception  of  contraband 
of  war,  are  not  liable  to  capture  under  the  enemy's  flag. 

(d.)  Blockades,  to  be  binding,  must  be  effective,  that 
is  to  say,  maintained  by  a  force  sufficient  really  to 
prevent  access  to  the  coast  of  the  enemy. 

The  declaration  was  signed  by  plenipotentiaries  rep- 
resenting Great  Britain,  France,  Russia,  Austria,  Sar- 
dinia, Prussia,  and  Turkey ;  and  the  signatory  powers 


1  Joint  Declaration  of  March  28,  1854,  made  by  England  and 
France. 


NEUTRALITY.  285 

further  agreed  to  bring  the  declaration  to  the  knowl- 
edge of  the  states  which  had  not  taken  part  in  the 
Congress  of  Paris,  and  to  invite  them  to  accede  to  it. 
Between  the  years  1856  and  1861  the  principles  of  the 
declaration  had  been  accepted  by  all  the  European 
powers  except  Spain,  and  by  all  those  on  the  western 
continent  except  Mexico  and  the  United  States.  The 
three  powers,  which  refused  to  adopt  the  proposed 
rules,  agreed  in  rejecting  the  rule  abandoning  the  prac- 
tice of  privateering ;  and,  as  the  declaration  had  to  be 
accepted  as  an  entirety,  these  states  were  thus  prevent- 
ed from  formally  accepting  the  three  rules  to  which 
they  entertained  no  objection.  When  the  Declara- 
tion of  Paris  was  submitted  to  the  government  of  the 
United  States  for  adoption,  it  was  replied,  in  behalf  of 
that  power,  that,  in  their  proposed  form,  the  rules  could 
not  be  accepted  as  a  whole.  The  policy  of  the  United 
States  had  always  been  to  maintain  a  small  naval  es- 
tablishment, and  its  important  commercial  interests 
would  not  permit  it  to  resign  the  right  of  increasing 
its  power  at  sea,  at  the  outbreak  of  war,  by  the  accept- 
ance into  its  naval  service  of  a  force  of  privateers.  It 
was  observed,  however,  that  if  a  rule  were  added  to 
the  Declaration  exempting  all  private  property  from 
capture  at  sea,  in  tune  of  war,  the  necessity  for  the 
employment  of  such  an  additional  force  would  disap- 
pear, and  the  United  States  would  gladly  accede  to  the 
proposed  rules.  At  the  outbreak  of  the  War  of  the 
Rebellion  an  attempt  was  made  by  the  United  States 
to  become  a  party  to  the  Declaration  of  Paris,  but,  as 
it  was  understood  that  its  acceptance  was  to  include 
the  Confederate  States  as  well,  the  attempt  was  not 
persisted  in. 


286  OUTLINES  OF  INTERNATIONAL  LAW. 

Binding  Force  of  the  Declaration. — The  rules  of  the 
Declaration  of  Paris  upon  the  subject  of  maritime 
capture,  although  binding  upon  the  signatory  powers 
alone,  have  been  generally  accepted  as  the  rule  of  In- 
ternational Law  upon  the  subjects  of  which  they  treat, 
and  it  is  highly  improbable  that  a  severer  rule  will  be 
adopted  at  any  time  in  the  future.  The  adoption  of  a 
milder  rule  is  as  little  probable.  Upon  several  occa- 
sions it  has  been  suggested  to  amend  them,  in  the  direc- 
tion of  greater  liberality,  by  the  adoption  of  a  rule 
exempting  all  private  property  from  capture  at  sea. 
These  suggestions  have  not  been  favorably  received 
by  the  great  maritime  powers,  however,  and  there  is 
no  indication,  at  present,  that  the  rules  of  the  Declara- 
tion will  be  relaxed  in  such  a  way  as  to  give  to  private 
property,  at  sea,  any  greater  immunity  from  capture 
than  it  now  enjoys. 

At  different  times  the  justice  of  the  rules  of  the 
Declaration  of  Paris  has  been  discussed,  especially  in 
England,  and  the  opinion  has  been  advanced  that  that 
power  had  unwisely  surrendered  a  valuable  right,  with- 
out receiving  in  return  any  corresponding  advantage. 
It  is  difficult  to  see  how  this  ground  can  be  maintained. 
The  loss  of  private  property  at  sea,  however  great  in 
amount,  rarely  affects,  to  any  material  extent,  the  mil- 
itary resources  of  a  powerful  belligerent,  and  so,  rarely 
contributes  to  bring  to  an  end  an  existing  war.  It 
would  be  impossible  to  invent  a  more  effective  method 
of  not  only  crippling,  but  absolutely  destroying,  the 
merchant  marine  of  a  state,  than  was  resorted  to,  with 
the  most  complete  success,  by  the  government  of  the 
Confederate  States  during  the  War  of  the  Rebellion. 
But  the  destruction  wrought  by  the  Confederate  cruis- 


NEUTRALITY.  287 

ers  in  no  material  way  impaired  the  military  strength 
of  the  United  States,  or  changed  the  result  of  the  war 
in  the  slightest  degree.  If  it  was  intended,  by  the  de- 
struction of  vast  amounts  of  private  property,  to  affect 
the  course  of  the  Federal  government,  that  intention 
signally  failed  of  execution.  On  the  other  hand,  it 
is  at  least  probable  that  the  business  revival  of  the 
Southern  States  has  been,  to  an  appreciable  degree, 
injuriously  affected  by  the  change  in  carrying  trade, 
which  resulted  from  the  destruction  of  the  American 
merchant  marine  during  the  War  of  the  Rebellion. 
The  position  of  England  in  this  matter  is  still  more 
difficult  to  understand.  The  English  navy,  efficient 
and  powerful  as  it  may  be,  is  not  omnipotent,  and,  as 
the  experience  of  the  United  States  has  shown,  the 
enormous  commercial  marine  of  England  would,  in 
the  event  of  war,  be  liable  to  capture  and  destruction, 
as  a  result  of  the  depredations  of  a  relatively  small 
number  of  fast-steaming  cruisers,  whose  operations  are 
more  difficult  to  check  than  is  generally  supposed. 
The  power  of  a  state  to  efficiently  police  the  sea,  and 
to  protect  its  merchant  marine,  by  preventing  or  pun- 
ishing depredations  against  it,  is  largely  overestimated. 
At  no  time  in  history  has  the  supremacy  of  England 
at  sea  been  more  unquestioned  than  during  the  period 
of  aSTapoleonic  wars,  at  the  beginning  of  this  century ; 
and  yet,  on  two  conspicuous  occasions,  when  the  full- 
est warning  of  the  enemy's  purposes  and  intentions 
had  been  given,  a  hostile  fleet  was  able,  without  par- 
ticular or  exceptional  difficulty,  to  evade  the  whole 
maritime  power  of  England.1 

1  One  of  these  occurred  in  1796,  when  General  Hoche  succeeded 


288  OUTLINES  OF   INTERNATIONAL  LAW. 

5.  Effect  of  Claims  to  Exclusive  Dominion  upon  the 
Development  of  the  Neutral  Theory. — As  the  assertion 
and  enforcement  of  these  claims  have  invariably  had 
the  effect  of  retarding  the  development  of  the  true  the- 
ory of  neutral  obligations,  they  will  now  be  briefly 
discussed.  If  we  examine  the  history  of  those  cities  and 
states  which,  at  different  times,  have  attained  great  mar- 
itime or  commercial  supremacy,  it  will  be  seen  that 
they  have  always  claimed  exclusive  commercial  do- 
minion over  the  seas  and  coasts  with  which  they  were 
the  first  to  develop  commercial  intercourse.  When 
the  Greeks  first  began  to  interest  themselves  in  foreign 
commerce  they  found  the  Phoenicians  in  possession  of 
the  most  desirable  coasts  of  the  Mediterranean.  They 
were,  therefore,  obliged  to  confine  their  commercial 
undertakings  to  new  seas,  or  to  parts  of  the  Mediter- 
ranean which  their  rivals  had  not  already  appropri- 
ated. Neither  of  these  people  aspired  to  territorial,  as 
distinguished  from  •  commercial,  dominion.  The  pos- 
session of  the  sea-coast  sufficed  to  secure  the  latter; 
with  the  former  they  had  no  concern.  With  the  Ro- 
mans the  case  was  entirely  different.  They  deemed 
mere  commercial  supremacy  as  of  but  slight  impor- 
tance, and  claimed,  and  ultimately  acquired,  universal 
dominion.  With  the  downfall  of  the  Western  Empire 
commerce  greatly  declined,  and  at  times  almost  dis- 
appeared. With  the  revival  of  civilization,  however, 
commercial  intercourse  was  re-established,  and  was 
fostered  and  controlled  by  those  cities  of  Italy  and 

in  entering  Bantry  Bay,  on  the  Irish  coast;  the  other  in  1798,  when 
an  enormous  French  fleet  succeeded,  during  a  period  of  more  than 
six  weeks,  in  evading  a  no  less  skilful  naval  commander  than  Lord 
Nelson.  Thiers,  vol.  iv.,  pp.  67,  260  et  seq. 


NEUTRALITY.  289 

Spain  which  were  the  first  to  engage  in  maritime  pur- 
suits, toward  the  close  of  the  Dark  Ages.  These  cities 
soon  claimed  exclusive  dominion  over  certain  waters 
for  purposes  of  trade,  and  forbade  all  commerce  with 
such  coasts  to  the  ships  of  other  cities.  Their  right 
to  such  exclusive  intercourse  was  denied,  and  numer- 
ous wars  were  undertaken,  some  in  support  of,  and 
others  in  opposition  to,  these  claims. 

Venice  was  the  first  of  the  Mediterranean  cities  to 
attain  to  any  considerable  degree  of  commercial  su- 
premacy, and,  so  early  as  the  twelfth  century,  asserted 
a  right  to  the  exclusive  navigation  of  the  Adriatic. 
This  claim  was  sanctioned  by  Pope  Alexander  III.,  in 
11 77,1  and  was  long  maintained  against  all  opposition. 
At  a  later  period  similar  claims  were  advanced  by  Ge- 
noa and  Pisa.  The  discovery  of  the  sea  route  to  India 
by  Portugal,  and  of  the  western  continent  by  Spain, 
largely  reduced,  and  eventually  destroyed,  the  commer- 
cial importance  of  the  Mediterranean  cities,  and  trans- 
ferred' the  sovereignty  of  the  seas  to  the  two  latter 
powers,  by  whom,  in  turn,  the  most  extravagant  claims 
were  asserted  to  maritime  dominion.  As  the  claims 
brought  forward  by  Spain  and  Portugal  were  in  some 
degree  conflicting,  they  were  submitted  to  the  pope, 
Alexander  YIL,  who,  in  1493,  established,  as  a  boun- 
dary between  them,  a  meridian  line  passing  through  a 
point  one  hundred  leagues  west  of  the  Azores  Islands.2 
All  of  the  earth's  surface  east  of  that  line,  which  formed 
no  part  of  the  dominions  of  any  Christian  prince,  was 
declared  to  belong  to  Portugal ;  while  all  to  the  west 
of  the  same  line  was,  subject  to  a  similar  restriction, 

1  Azuni,  vol.  i.,  p.  76.  a  Ibid.,  p.  106. 

19 


290  OUTLINES  OF  INTERNATIONAL  LAW. 

decreed  to  Spain.  Claims  somewhat  similar  in  charac- 
ter were  advanced,  at  a  later  period,  by  England  and 
Holland,  only  to  encounter  the  most  serious  and  obsti- 
nate resistance,  which  resulted  in  their  final  abandon- 
ment. The  last  instance  of  such  a  claim  being  ad- 
vanced to  any  considerable  portion  of  the  high  seas 
was  that  of  Russia,  who  asserted  the  right  of  exclu- 
sive navigation  of  that  part  of  the  Pacific  lying  north 
of  the  fifty-fourth  degree  of  north  latitude,  on  the 
ground  that  it  possessed  the  coasts  of  both  continents 
above  that  line.  This  claim,  however,  was  relinquished 
upon  the  representations  of  England  and  the  United 
States,  and  has  never  been  reasserted.1 

If  the  claims  which  have  been  made,  at  different 
times,  to  exclusive  maritime  dominion  be  examined, 
it  will  be  found  that  each  of  them  is  susceptible  of  be- 
ing resolved  into  two  parts : 

(a.}  A  claim  to  a  kind  of  territorial  sovereignty  over 
a  portion  of  the  high  seas,  with  the  adjacent  coasts. 

(7>.)  A  claim  to  the  right  of  exclusive  commercial 
intercourse  with  the  territories  whose  coasts  were 
washed  by  the  waters  over  which  jurisdiction  was 
asserted. 

The  first  of  these  claims  has  been  vigorously  opposed 
since  the  middle  of  the  seventeenth  century,  and  with 
such  success  that  all  such  claims  have  long  since  been 
abandoned,  never  to  be  reasserted. 

The  second  continued  to  exist,  and  was  long  recog- 
nized as  just  and  equitable.  As  new  territories  were 
acquired  by  different  European  powers,  either  by  colo- 

1  See  "Treaties  and  Conventions  of  the  United  States  with  Foreign 
Powers,"  Washington,  1871,  pp.  733-735. 


NEUTRALITY.  291 

nization  or  by  conquest,  the  exclusive  privilege  of 
trading  with  them  was  claimed  by  the  parent  or  con- 
quering state,  and,  tacitly  or  expressly,  recognized  by 
other  states  of  the  civilized  world. 

The  Jtfo?iopoly  of  Colonial  Trade. — Although  the 
claim  of  a  parent  state  to  a  practical  monopoly  of  co- 
lonial trade  was  finally  recognized,  such  recognition 
was  not  conceded  without  opposition,  nor  was  the  co- 
lonial monopoly  itself  a  source  of  unmixed  benefit  to 
the  state  enjoying  it.  In  time  of  peace  it  was  a  fruitful 
source  of  revenue,  and  afforded  a  favorable  market  for 
the  productions  of  the  mother  country.  In  the  event 
of  war,  however,  if  the  parent  state  occupied  the  posi- 
tion of  a  belligerent,  its  vessels  engaged  in  the  colonial 
trade  became  liable  to  capture  and  confiscation,  and  it 
was  impossible  to  measure  the  resulting  loss  by  the 
money  value  of  the  ships  and  cargoes  which  were  capt- 
ured by  the  enemy.  A  large  part  of  the  belligerent's 
commerce  was  destroyed,  or  diverted  to  other  chan- 
nels, and  was  but  slowly  revived  after  the  peace.  To 
obviate  this  attempts  were  made,  at  times,  by  several 
European  states,  to  transfer  their  colonial  trade  to  a 
neutral  flag,  during  the  period  of  hostilities.  As  this 
course  deprived  a  belligerent  of  the  right  to  injure  his 
enemy,  by  a  resort  to  one  of  the  most  powerful  means 
of  coercion  then  recognized  by  the  laws  of  war,  such 
transfers  of  trade  were  stoutly  resisted,  chiefly  by  the 
British  government;  whose  maritime  preponderance 
had  become  so  firmly  established  by  the  middle  of  the 
eighteenth  century  as  to  enable  it  to  enforce  respect,  in 
so  far  as  its  own  interests  were  concerned,  to  whatever 
vievrs  of  maritime  warfare  were  deemed  by  it  to  be  cor- 
rect, and  in  accordance  with  International  Law. 


292  OUTLINES  OF  INTERNATIONAL  LAW. 

The  Rule  of  1756. — The  view  thus  advanced  by 
Great  Britain  was  extended  to  all  colonial  trade  with 
neutrals  by  the  Kule  of  1793,  but  was  immediately  op- 
posed by  France  and  Spain,  and,  at  a  later  period,  by 
the  United  States.  A  principle  or  rule,  asserted,  or 
even  enforced,  by  one  powerful  state,  is  not  a  rule  of 
International  Law ;  to  become  such  it  must  receive  the 
sanction  of  all,  or  nearly  all,  of  the  civilized  states  of 
the  world.  The  principle  underlying  the  llule  of  1756 
is  now  accepted,  as  applying  to  coasting  trade,  by  the 
principal  maritime  powers.  But  the  Kule  of  1793  has 
received  no  such  general  sanction,  and  its  enforcement, 
if  persisted  in,  would  have  given  rise  to  most  serious 
complications.  Its  severity,  however,  was  relaxed  as 
practical  free  trade  was  gradually  conceded  to  colonies ; 
largely  upon  their  demand  to  enter  the  markets  of  the 
world  upon  equal  terms  with  the  mother  country. 

6.  Development  of  the  Theory  of  Neutrality  among 
the  Non-maritime  States  of  Europe. — The  power  and 
importance  of  the  Mediterranean  cities  was  entirely 
maritime,  and  was  due  to  the  energy  and  industry  with 
which  they  prosecuted  their  commercial  undertakings. 
They  had  but  little  power  on  land ;  they  rarely  assert- 
ed claims  to  territorial  supremacy,  and  so  were  rarely 
engaged  in  wars,  other  than  those  caused  by  their  con- 
flicting commercial  interests.  It  was  for  this  reason 
that  they  progressed  but  little,  in  their  development 
of  the  theory  of  neutrality,  beyond  the  establishment 
of  the  rules  regulating  the  subject  of  maritime  capture. 
The  relations  of  the  great  European  states,  which  were 
gradually  acquiring  something  of  their  present  terri- 
torial form,  were  not  such  as  to  favor  the  development 
of  any  consistent  or  enduring  theory  of  neutral  obliga* 


NEUTRALITY.  293 

tion.  Their  relations  were  more  generally  hostile  than 
peaceful ;  private  and  dynastic  wars  were  common,  and 
the  brief  periods  during  which  hostilities  were  inter- 
rupted, or  suspended,  were  usually  devoted  to  the  prep- 
aration of  new  schemes  of  conquest  or  dominion.  Some 
progress  must  have  been  made,  however,  as  the  neces- 
sities of  the  great  powers  made  peace  occasionally  de- 
sirable. But  it  was  impossible  for  the  conception  of 
neutrality  to  obtain  general  recognition  until  the  de- 
sire of  the  powers  to  remain  at  peace  had  acquired  suf- 
ficient strength  to  become  at  least  equal  to  the  desire 
for  war  and  conquest.  In  the  absence  of  positive  evi- 
dence, it  is  fair  to  presume  that  the  rudiments  of  the 
theory  were  first  recognized  by  those  states  which  be- 
came neutral  by  reason  of  their  distance  from  the  thea- 
tre of  war,  and  from  a  consequent  lack  of  direct  interest 
in  the  war,  or  its  results.  When  the  principle  of  the 
balance  of  power  first  began  to  be  understood,  it  seems 
to  have  been  regarded  as  possible  to  maintain  it  in  no 
other  way  than  by  waging  war  against  the  state,  or 
states,  which  threatened  it.  Indeed,  it  was  not  merely 
threatened,  it  was  repeatedly  attacked,  and  was  in  con- 
stant danger  of  overthrow,  which  could  be  effectively 
prevented  only  by  force  of  arms.  This  state  of  affairs 
contributed  powerfully  to  retard  the  growth  of  the 
theory  of  neutrality,  since  every  important  state  in 
Europe  was  obliged  to  take  part,  as  principal  or  ally, 
in  the  numerous  wars  which  were  undertaken  when- 
ever the  equilibrium  was  disturbed. 

Influence  of  England  upon  the  Development  of  the 
Modern  Theory  of  Neutrality. — The  insular  situation 
of  England,  so  placed  as  to  be  secure  from  attack  ex- 
cept by  sea,  enabled,  and  to  some  extent  constrained, 


294:  OUTLINES  OF  INTERNATIONAL  LAW. 

that  power  to  adopt  a  policy  of  partial  abstinence  from 
interference  in  Continental  affairs ;  and  to  decline  tak- 
ing part  in  Continental  wars  in  which  it  had  no  impor- 
tant interests  at  stake.  ISTot  only  was  England  able  to 
decline  participation  in  such  wars,  thus  placing  her  in 
a  position  of  practical  neutrality,  but  her  power  on 
land  and  sea  was  so  great  as  to  enable  her  to  insist 
upon  her  neutrality  being  respected  by  belligerents. 
She  thus  became,  to  a  certain  extent,  an  advocate  of 
neutrality,  and  an  example  to  other  powers  of  the  ad- 
vantage of  remaining  neutral. 

General  Acceptance  of  the  Modern  Theory  in  the 
Seventeenth  Century;  its  Later  History.  —  Although 
its  progress  had  been  extremely  slow,  the  principle  of 
neutrality  had  received  such  general  recognition  by  the 
middle  of  the  seventeenth  century,  as  to  lead  Grotius 
to  devote  a  portion  of  his  work  to  a  discussion  of  the 
rights  and  duties  of  neutrals.  From  that  time  its  prog- 
ress was  more  rapid.  The  Treaty  of  Westphalia  large- 
ly diminished  the  power  and  influence  of  the  Pope  in 
secular  affairs,  and  enabled  the  intercourse  of  the  Eu- 
ropean states  to  assume  a  more  normal  character.  Wars 
became  less  frequent,  and  were  more  closely  restricted, 
in  their  operations  and  effects,  to  the  states  which  were 
immediately  concerned  in  them.  The  states  which 
chose  to  occupy  the  position  of  neutrals,  at  the  out- 
break of  war,  steadily  increased  in  number ;  and  were 
led  to  insist  more  strongly  upon  their  rights  being  re- 
spected by  belligerents. 

It  was  during  this  period  that  the  Dutch  became  in- 
terested in  the  amelioration  of  the  rules  of  maritime 
capture.  Their  efforts  were  not  permanently  success- 
ful, however,  and,  as  their  influence  declined,  that  of 


NEUTRALITY.  295 

the  United  States  began  to  be  put  forth  in  advocacy  of 
the  same  cause.  Their  independence  had  no  sooner  been 
recognized  than  they  began  to  assume  importance  as  a 
commercial  power.  The  tendencies  of  the  new  state 
were  altogether  peaceful.  Its  distance  from  Europe, 
not  less  than  its  peculiar  governmental  institutions,  se- 
cured it  an  almost  complete  immunity  from  interfer- 
ence in  European  affairs,  and  enabled  its  people  to  devote 
their  energies  to  projects  of  internal  development,  and 
to  the  extension  of  their  already  important  commercial 
relations.  The  foreign  policy  of  the  United  States  was, 
from  the  first,  one  of  strict  non-participation  in  ques- 
tions of  strictly  European  concern.  Every  considera- 
tion, therefore,  of  material  interest  and  territorial  po- 
sition, induced  the  new  republic  to  occupy  an  attitude 
of  neutrality  in  all  wars  of  European  origin.  The  jus- 
tice and  advantage  of  this  policy  were  fully  appreciated 
by  those  who  directed  its  foreign  affairs,  and  so  thor- 
oughly were  the  principles  of  neutral  obligation  un- 
derstood by  them,  that  the  early  proclamations  of  neu- 
trality, issued  by  the  United  States,  not  only  served  to 
establish  the  permanent  neutral  policy  of  that  power, 
but  were  soon  generally  accepted  as  furnishing  an  en- 
during standard  of  neutral  right  and  duty. 

7.  Gradations  of  Neutrality.  —  The  crude  and  im- 
perfect views  of  neutral  duty  which  formerly  prevailed 
admitted  of  gradations,  or  degrees,  of  neutral  obliga- 
tion. These  were,  in  substance,  violations  of  neutral- 
ity, and,  as  such,  are  no  longer  sanctioned  by  the  prac- 
tice of  nations.  Such  was  the  qualified  neutrality  of 
certain  European  states  during  the  last  century,  by 
which  the  obligation  to  remain  neutral  was  qualified 
by  a  previous  treaty  with  one  of  the  belligerents,  stip- 


296  OUTLINES  OF  INTERNATIONAL  LAW. 

ulating  to  furnish  him  with  certain  aid  in  men,  money, 
or  war  material  in  the  event  of  a  particular  war,  or 
upon  the  occurrence  of  hostilities  of  any  kind  with 
any  state.  Such  action  would  not  now  be  tolerated ; 
and  a  state  entering  into  such  treaty  engagements 
would  be  regarded  as  an  ally  of  the  enemy  so  soon  as 
it  undertook  to  carry  into  effect  its  treaty  stipulations. 

Permanent  Neutrality.  —  The  status  of  permanent 
neutrality  occupied  by  Switzerland  and  Belgium  is  in 
no  way  repugnant  to  International  LaAV.  The  excep- 
tional circumstances  in  each  case  are,  to  some  extent, 
based  upon  the  size  and  territorial  position  of  these 
states,  upon  their  inferior  military  power  as  compared 
with  the  great  states  by  which  they  are  surrounded, 
and  to  a  certain  extent,  also,  upon  considerations  hav- 
ing to  do  with  the  preservation  of  the  European  bal- 
ance of  power. 

Armed  Neutrality. — An  armed  neutrality  is,  in  fact, 
an  alliance  of  several  powers,  usually  of  a  defensive 
character,  though  this  is  by  no  means  essential.  The 
purpose  of  such  an  alliance  is  to  secure  the  mainte- 
nance of  certain  views  of  neutral  right,  which  are  be- 
lieved to  be  in  danger,  or  whose  justice  is  likely  to  be 
questioned.  The  most  striking  historical  examples  of 
such  alliances  are  those  of  the  armed  neutralities,  of  the 
northern  European  powers,  of  1780  and  1800.  These 
alliances  were  made  to  defend  the  principle  of  free 
ships,  free  goods,  which  had  been  adopted  by  treaties 
between  the  Baltic  powers,  and  which  was  opposed  by 
England ;  that  power  being,  on  both  occasions,  a  bel- 
ligerent. Although  the  purpose  of  the  alliance  was 
not  effected  on  either  occasion,  the  agitation  of  the 
question  continued,  and  without  doubt  contributed 


NEUTRALITY.  297 

materially  to  bring  about  the  adoption  of  the  Declara- 
tion of  Paris.  If  the  commercial  interests  of  several 
nations  are  threatened  by  unjust  or  unlawful  measures, 
on  the  part  of  a  belligerent,  which  they  deem  unjust 
or  dangerous,  there  can  be  no  question  of  their  right 
to  secure  their  menaced  interests  by  such  combinations 
as  seem  best  calculated  to  accomplish  the  purpose. 

Strict  Neutrality. — As  at  present  understood,  a  state, 
in  becoming  neutral,  occupies  a  position  of  strict  neu- 
trality. It  rigidly  abstains  from  aiding  either  bellig- 
erent, or  from  rendering  to  either  of  them  any  service, 
however  slight  or  immaterial,  which  is  calculated  to 
assist  him  in  his  military  operations.  The  friendly 
relations  existing  at  the  outbreak  of  the  war  are  not 
interrupted,  and  it  is  to  secure  the  continuance  of  such 
relations  that  a  neutral  state  becomes  charged  with 
certain  duties,  during  war,  which  do  not  exist  during 
peace.  These  obligations  are  the  measure  of  a  neu- 
tral's duty  in  war.  They  are  determined  by  Interna- 
tional Law,  and  have  the  same  binding  force  upon  all 
states.  A  failure  in  the  performance  of  these  duties 
is  an  injury  to  the  particular  belligerent  who  suffers 
by  the  failure  of  a  neutral  state  to  fulfil  its  obligations. 
These  obligations  have  to  do,  in  part  with  the  conduct 
of  the  neutral  state  in  its  capacity  as  a  body  corporate, 
and  in  part  with  the  conduct  of  persons  within  its  ju- 
risdiction. 

8.  Neutral  Duty  of  a  State. — A  state,  in  its  corpo- 
rate capacity,  is  not  permitted  to  give  any  material 
aid  to  either  belligerent,  or  to  furnish  money,  ships, 
troops,  subsistence,  or  munitions  of  war ;  or  to  render 
any  assistance  which  is  likely  to  be  useful  to  such  bel- 
ligerent in  his  military  operations.  A  neutral  state, 


298  OUTLINES  OF  INTERNATIONAL  LAW. 

therefore,  cannot  permit  its  ports,  or  territorial  waters, 
to  be  used  as  a  base  of  hostile  operations,  or  as  depots 
of  supply  of  articles  susceptible  of  warlike  use.  It  is 
forbidden  to  allow  the  enlistment  of  men,  or  the  or- 
ganization or  equipment,  wholly  or  in  part,  of  a  hos- 
tile expedition,  by  sea  or  land,  within  its  territorial 
limits. 

Some  of  these  acts  being,  in  substance,  acts  of  sov- 
ereignty, are  forbidden  alike  in  peace  and  war.  Oth- 
ers are  permitted  in  peace,  but  are  forbidden  in  time 
of  war.  The  principle  underlying  the  latter  class  is 
this.  Any  substantial  aid  or  service,  which  contributes 
to  the  success  of  the  military  operations  of  one  bellig- 
erent, enables  him  to  inflict  an  injury  upon  his  enemy 
with  whom  the  neutral  is  at  peace.  The  neutral  state, 
therefore,  in  a  more  or  less  direct  manner,  has  injured, 
or  contributed  to  injure,  a  friend.  As  every  state  is 
the  exclusive  judge  as  to  what  injuries  it  shall  regard 
as  furnishing  just  cause  for  war,  a  neutral  state  may 
in  this  way,  by  a  single  act  of  service,  become  a  party 
to  the  war.  It  is  easy  to  see,  therefore,  that,  if  it  were 
permitted  to  render  such  services  with  impunity,  every 
important  war  would,  sooner  or  later,  involve  all  neu- 
tral states  in  its  operations,  and  so  one  of  the  chief 
purposes  of  International  Law  would  fail  of  attain- 
ment. War  would  again  become  the  rule,  as  in  an- 
cient times,  and  for  much  the  same  reason.  Perma- 
nent peace  would  be  impossible,  and  the  relations  of 
states  would  be  subjected  to  a  constant  strain,  which 
would  seriously  affect  their  prosperity  and  material 
development. 

Neutral  Duties. — A  state  in  becoming  a  neutral  can- 
not divest  itself  of  the  duties  to  other  states,  and  to 


NEUTRALITY.  299 

their  individual  subjects,  which  are  incumbent  upon  it 
in  time  of  peace.  These  continue  in  force,  but  certain 
precautions  incident  to,  and  made  necessary  by,  the 
fact  of  \var,  must  be  observed  in  their  performance. 

Asylum  to  Troops  and  Ships. — A  neutral  is  obliged 
to  grant  an  asylum  to  individuals  of  the  enemy,  who 
come  into  its  territorial  limits  to  escape  pursuit,  or  to 
find  protection  from  acts  of  hostility.  They  become 
subject  to  neutral  jurisdiction  so  soon  as  they  enter  its 
territory.  If  fleeing  from  an  enemy,  they  are  dis- 
armed, and,  at  the  discretion  of  the  neutral  govern- 
ment, may  be  removed  to  points  in  the  interior,  and 
may  there  be  subjected  to  such  measures  of  police  su- 
pervision, or  positive  restraint,  as  it  may  deem  neces- 
sary to  secure  respect  for  its  neutrality.  If  in  large 
numbers  and  without  means  of  support,  these  fugitives 
are  made  the  subject  of  treaty  arrangements,  and  are 
usually  supported  at  the  expense  of  their  own  govern- 
ment. The  French  troops  who  fled  to  Belgium,  after 
the  battle  of  Sedan,  were  disarmed  and  conveyed  to  a 
point  at  some  distance  from  the  frontier,  and  the  ex- 
pense of  their  maintenance  was  ultimately  defrayed 
by  the  French  government. 

Right  of  Asylum  in  the  Case  of  Public  and  Private 
Vessels. — A  similar  right  of  asylum  exists  in  the  case 
of  public  and  private  armed  vessels,  and  to  merchant 
ships  belonging  to  either  belligerent.  They  may  seek 
refuge  in  a  neutral  port  from  the  perils  of  the  sea,  or 
from  a  superior  force  of  the  enemy.  The  protection 
of  the  neutral  government  is  extended  to  them  so  soon 
as  they  come  within  its  territorial  waters ;  and  it  may 
resist,  by  force  if  need  be,  any  hostile  attempts  that 
are  directed  against  them  while  within  its  jurisdiction. 


300  OUTLINES  OF  INTERNATIONAL  LAW. 

As  the  favor  is  that  of  asylum  only,  the  asylum  may 
terminate  at  the  will  of  the  neutral.  "When  vessels  of 
two  belligerents  are  found  in  a  neutral  port,  at  the 
same  time,  it  is  within  the  power  of  the  neutral  to  es- 
tablish such  regulations,  in  regard  to  their  conduct  and 
departure,  as  will  make  it  impossible  for  an  engagement 
to  take  place  in  the  immediate  vicinity  of  the  port. 
This  object  is  usually  attained  by  the  enforcement  of 
the  twenty -four  hour  rule,  by  which,  when  one  belliger- 
ent vessel  departs,  the  other  is  forbidden  to  sail  within 
twenty-four  hours.  This  rule  has  been  so  frequently 
and  generally  applied,  in  recent  times,  as  to  have  re- 
ceived the  universal  sanction  of  nations. 

Neutral  Territory.  —  The  territory  and  territorial 
waters  of  a  neutral  state  are  sacred  from  belligerent 
intrusion,  save  with  the  consent  of  the  neutral  govern- 
ment. Such  consent  may  be  granted,  or  denied,  to 
both  belligerents ;  but,  according  to  the  present  rule, 
cannot  be  granted  to  either  to  the  exclusion  of  the 
other.  Captures  made  in  neutral  waters  are  restored, 
or  indemnified,  even  after  they  have  been  condemned 
by  a  prize  court,  since  such  courts  have  no  jurisdiction 
over  prizes  made,  except  on  the  high  seas,  or  within 
the  territorial  waters  of  a  belligerent.  "It  belongs, 
however,  exclusively  to  the  neutral  government  to 
raise  objection  to  a  title  founded  upon  a  capture  made 
within  neutral  territory.  So  far  as  the  adverse  bellig- 
erent is  concerned,  he  has  no  right  to  complain  if  the 
case  be  tried  before  a  competent  court.1  The  gov- 
ernment of  the  owner  of  the  captured  property  may, 
indeed,  call  the  neutral  to  account  for  permitting  a 

1  The  Arrogante  Barcelones,  Wheaton,  vol.  vii.,  p.  490. 


NEUTRALITY.  301 

fraudulent,  unworthy,  or  unnecessary  violation  of  its 
jurisdiction,  and  such  permission  may,  according  to 
the  circumstances,  convert  the  neutral  into  a  bellig- 
erent." ' 

The  right  of  a  public  armed  vessel  of  a  belligerent 
to  enter  a  neutral  port,  when  not  in  distress,  is  usually 
conceded ;  and  is  presumed,  unless  notice  to  the  con- 
trary is  formally  given  by  the  neutral  government. 
They  may  be  forbidden  to  enter  certain  ports,  or  to 
enter  neutral  territory  at  all  except  in  distress,  but  the 
rule  must  bear  equally  upon  both  belligerents.  Pri- 
vateers may  be  denied  entrance  to  neutral  ports,  es- 
pecially if  the  neutral  government  is  a  party  to  the 
Declaration  of  Paris.  The  bringing  in  of  prizes  is 
still  authorized  by  existing  treaties,  though  the  present 
tendency  is  to  restrict  the  right  within  the  narrowest 
limits,  if  not  to  deny  it  altogether.  The  condemnation 
or  sale  of  such  prizes  by  a  neutral  prize  court,  or  by  a 
belligerent  prize  court  sitting  in  neutral  territory,  is 
no  longer  permitted. 

A  belligerent  war  ship  which  has  been  permitted  to 
enter  a  neutral  port,  may  procure  there  such  supplies, 
not  contraband  of  war,  as  may  be  permitted  by  the 
neutral  government.  The  supply  of  coal  is  now  made 
the  subject  of  special  regulation,  and  only  a  limited 
amount  is  allowed  to  be  taken  in.3 


1  Phillimore,  vol.  iii.,  p.  287. 

•  On  Jan.  31, 1862,  the  British  government  adopted  the  rule  that 
a  belligerent  armed  vessel  was  to  be  permitted  to  receive,  at  any 
British  port,  a  supply  of  coal  sufficient  to  enable  her  to  reach  a  port 
of  her  own  country,  or  a  nearer  destination.  A  second  supply  was 
not  to  be  given  within  three  months,  save  with  the  express  permis- 
sion of  the  government. 


302  OUTLINES  OF  INTERNATIONAL  LAW. 

9.  Responsibility  of  a  Neutral  State  for  the  Acts  of 
its  Subjects. — A  different  rule  applies  to  the  conduct  of 
the  subjects  of  a  neutral  state,  than  is  applied  to  the 
neutral  state  itself,  in  its  relations  with  the  belliger- 
3nts.  It  has  been  seen  that  the  restrictions,  to  which 
neutral  states  are  subject,  are  such  as  will  prevent  them 
from  aiding  either  belligerent  in  his  military  opera- 
tions, and,  at  the  same  time,  be  the  smallest  possible 
consistent  with  the  purpose  of  the  war.  The  subjects 
of  a  neutral  state,  however,  at  the  outbreak  of  a  war, 
are  engaged  in  many  different  occupations,  over  some 
of  which  the  belligerent  is  given  jurisdiction  to  the 
extent  of  actual  prohibition.  They  are  also  engaged 
in  the  production,  manufacture,  and  sale  of  certain 
articles  which  become  contraband  of  war  if  sold  to  an 
enemy,  or  found  at  sea  en  route  to  an  enemy's  port. 
In  all  other  respects  their  undertakings  are  innocent, 
and  are  not  interrupted,  or  affected,  by  the  fact  of  war. 
The  manufacture  of  contraband  articles,  and  even  their 
sale,  in  neutral  jurisdiction,  continues  to  be  an  inno- 
cent and  lawful  occupation.  The  neutral  state  itself 
ought  not  to  be  expected  to  interfere  with  the  pursuits 
of  its  subjects,  so  long  as  they  are  not  likely  to  com- 
promise the  position  of  neutrality  which  it  assumed  at 
the  outbreak  of  the  war.  The  power  placed  in  the 
hands  of  the  belligerents  to  blockade  the  ports  of  an 
enemy,  to  search  neutral  vessels  on  the  high  seas,  and 
to  seize  and  condemn  such  portions  of  their  cargoes 
as  are  contraband  of  war,  or  are  destined  to  a  block- 
aded port,  are  ample  to  protect  them  from  being  in- 
jured by  the  acts  of  individuals.  If  they  do  not,  or 
cannot,  make  their  powers  effective,  they  cannot,  of 
right,  expect  neutral  states  to  assist  them  in  their  en,- 


NEUTRALITY.  303 

deavors.  Nor  can  they  expect  neutrals  to  resort  to 
severe  police  measures,  against  their  own  subjects,  in  a 
matter  with  which  they  have  no  direct  concern. 

View  of  England  and  the  United  States. — The  prin- 
ciple involved  was  well  stated  by  Mr.  Webster  in  his 
reply  to  the  Mexican  government,  which  had  com' 
plained  of  certain  alleged  violations  of  neutrality,  on 
the  part  of  individuals,  in  the  supply  of  arms  to  Texas, 
then  at  war  with  Mexico.  "  It  is  not  the  practice  of 
nations  to  prohibit  their  own  subjects,  by  previous 
laws,  from  trafficking  in  articles  contraband  of  war. 
Such  trade  is  carried  on  at  the  risk  of  those  engaged 
in  it,  under  the  liabilities  and  penalties  prescribed  by 
the  law  of  nations  or  particular  treaties.  If  it  be  true, 
therefore,  that  citizens  of  the  United  States  have  been 
engaged  in  a  commerce  by  which  Texas,  an  enemy  of 
Mexico,  has  been  supplied  with  arms  and  munitions  of 
war,  the  government  of  the  United  States,  neverthe- 
less, was  not  bound  to  prevent  it ;  could  not  have  pre- 
vented it,  without  a  manifest  departure  from  the  prin- 
ciples of  neutrality,  and  is  in  no  way  answerable  for 
the  consequences.  .  .  .  The  eighteenth  article  (of  the 
treaty  between  the  United  States  and  Mexico)  enumer- 
ates those  commodities  which  shall  be  regarded  as  con- 
traband of  war ;  but  neither  that  article,  nor  any  other, 
imposes  on  either  nation  any  duty  of  preventing,  by 
previous  regulation,  commerce  in  such  articles.  Such 
commerce  is  left  to  its  ordinary  fate,  according  to  the 
law  of  nations."  * 

Mr.  Layard,  the  Solicitor-General  of  the  British  gov- 

1  Lawrence's  Wheaton,  p.  813,  note,  citing  Webster's  Works,  vol 
vi.,  p.  452,  "Letter  of  Webster  to  Thompson,"  July  8,  1843. 


304  OUTLINES  OF  INTERNATIONAL  LAW. 

ernment,  in  a  speech  in  the  House  of  Commons,  adopt 
ed  the  view  above  stated,  and  added,  "  The  only  law 
which  enables  Her  Majesty's  government  to  interfere 
in  such  cases  is  called  the  Foreign  Enlistment  Act,  and 
the  whole  nature  and  scope  of  that  act  is  sufficiently 
and  shortly  set  out  in  its  title.  It  is  '  An  act  to  pre- 
vent the  enlisting  and  engagement  of  Her  Majesty's 
subjects  to  serve  in  a  foreign  service,  and  the  fitting 
out  or  equipping  in  Her  Majesty's  dominions,  of  ves- 
sels for  warlike  purposes,  without  Her  Majesty's  li- 
cense.' That  act  does  not  touch,  in  any  way  whatever, 
private  vessels  which  may  carry  cargoes,  contraband, 
or  not  contraband,  between  this  country  and  any  port 
in  a  belligerent  country,  whether  under  blockade  or 
not ;  and  the  government  of  this  country,  and  the  gov- 
ernments of  our  colonial  possessions,  have  no  power 
whatever  to  interfere  with  private  vessels  under  such 
circumstances. 

"  It  is  perfectly  true  that  in  the  queen's  proclama- 
tion there  is  a  general  warning  at  the  end,  addressed 
to  all  the  queen's  subjects,  that  they  are  not,  either  in 
violation  of  their  duty  to  the  queen,  as  subjects  of  a 
neutral  sovereign,  or  in  violation  or  contravention  of 
the  law  of  nations,  to  do  various  things,  one  of  which 
is  carrying  articles  considered  and  deemed  to  be  con- 
traband of  war,  according  to  law  or  the  modern  usages 
of  nations,  for  the  use  or  service  of  either  of  the  con- 
tending parties.  That  warning  is  addressed  to  them  to 
apprise  them  that  if  they  do  these  things  they  will  have 
to  undergo  the  penal  consequences  by  the  statute,  or  by 
the  law  of  nations,  in  that  behalf  imposed  or  denounced. 
In  those  cases  in  which  the  statute  is  silent,  the  govern- 
ment is  powerless,  and  the  law  of  nations  comes  in. 


NEUTRALITY.  305 

"  The  law  of  nations  exposes  such  persons  to  have 
their  ships  seized,  and  their  goods  taken  and  subjected 
to  confiscation,  and  it  further  deprives  them  of  the 
right  to  look  to  the  government  of  their  own  country 
for  protection.  And  this  principle  of  non-interference 
in  things  which  the  law  does  not  enable  the  govern- 
ment to  deal  with,  so  far  from  being  a  violation  of  the 
duty  of  neutrality — which  the  government  is  anxious 
to  comply  with — is  in  accordance  with  all  the  princi- 
ples wliich  have  been  laid  down  by  jurists,  and  more 
especially  by  the  great  jurists  of  the  United  States." ' 

Continental  View  upon  the  Subject  of  Governmental 
Control  of  the  Acts  of  Individuals. — The  views  above 
expressed  are  those  which  have  long  been  held  upon 
this  subject  in  England  and  the  United  States.  Most 
Continental  writers  are  at  variance  with  this,  and  con- 
tend that  more  or  less  of  direct  governmental  inter- 
ference is  necessary.  This  difference  of  view  arises 
from  the  fact  that  the  governments  of  nearly  all  the 
Continental  states  of  Europe  are  highly  centralized  in 
character,  and  all  commercial  undertakings  are  there- 
fore subject  to  a  more  or  less  complete  governmental 
supervision  and  control.  This  is  the  case  in  time  of 
peace,  and  is  an  incident  of  internal  administration. 
In  time  of  war  it  is  extremely  easy  for  any  of  these 
governments  to  regulate,  or  even  to  effectually  pro- 
hibit, contraband  trade  on  the  part  of  its  subjects,  if  it 
is  deemed  desirable  to  do  so  as  a  matter  of  state  poli- 
cy. In  England  and  the  United  States  no  such  super- 

1  Lawrence's  "Wheaton,  pp.  813,  814,  citing  remarks  of  Solicitor- 
General  Layard  in  the  House  of  Commons,  Feb.  22, 1862.     See  also 
"Annual  Message  of  President  Pierce,"  1854,  "Executive  Docu- 
ments of  the  United  States,"  1854-1855. 
20 


306  OUTLINES  OF  INTERNATIONAL  LAW. 

vision  exists  in  time  of  peace ;  and  it  could  be  estab- 
lished in  time  of  war  only  as  the  result  of  legislation 
upon  the  subject,  and  could  be  maintained  only  at 
great  expense,  and  at  the  constant  risk  of  violating 
some  of  the  existing  constitutional  guarantees  of  indi- 
vidual right. 

10.  Neutral  Rights.  —  A  neutral  state,  as  such,  re- 
ceives no  addition  to  its  sovereign  rights,  either  in 
number  or  extent,  at  the  outbreak  of  war.  It  is  at 
peace  with  both  belligerents,  and  they  have  no  more 
right  to  commit  acts  of  hostility  within  its  jurisdiction 
in  time  of  war,  than  in  time  of  peace.  The  neutral, 
therefore,  may  not  only  insist 'upon  a  complete  immu- 
nity from  such  acts  of  belligerency,  but  may  use  force 
to  compel  respect  to  its  sovereignty  within  the  sphere 
of  its  exclusive  jurisdiction,  and  to  resist  acts  of  ag- 
gression originating  with  either  belligerent,  and  di- 
rected against  the  neutral  state,  or  against  the  other 
belligerent,  in  neutral  territory. 

Violations  of  neutral  right  have  occurred  not  infre- 
quently in  the  past,  and,"  as  the  sphere  within  which 
neutral  rights  are  each  year  more  strongly  insisted 
upon  is  steadily  increasing,  such  violations  are  likely 
to  occur  quite  as  frequently  in  the  future.  A  neutral 
state  may  therefore  insist — (1)  upon  an  entire  immu- 
nity from  acts  of  belligerency  within  its  territorial 
waters.  A  public  vessel,  by  sailing  through  the  coast 
sea  of  a  neutral  state,  in  no  way  violates  its  neutrality. 
This  is  especially  true  when  the  act  is  done  in  the 
simple  prosecution  of  a  voyage,  and  when  not  in  pur- 
suit of  the  enemy.  It  has  been  seen  that  a  belligerent 
vessel,  either  public  or  private,  is  entitled  to  an  asylum 
in  the  port  of  a  neutral  from  danger  of  capture  by 


NEUTRALITY.  307 

an  enemy  as  well  as  from  the  perils  of  the  sea.  An 
armed  vessel,  therefore,  which  pursues  an  enemy  into 
neutral  waters,  or  effects  a  capture  there,  has  violated 
the  sovereignty  of  the  neutral  state.  It  may  be  forci- 
cibly  compelled  to  desist  from  the  pursuit,  and  all 
captures  made  by  it  in  neutral  jurisdiction  are  illegal, 
and  must  be  restored.  The  sovereignty  of  the  neu- 
tral state  has  been  invaded,  and  it  may  resort  to  such 
measures  of  prevention,  or  redress,  as  it  may  deem  best 
suited  to  the  emergency  of  the  case. 

(2.)  A  neutral  state  is  entitled  to  a  similar  immunity 
from  acts  of  belligerency  on  land.  Troops  fleeing 
from  an  enemy  may  seek  an  asylum  in  neutral  terri- 
tory. They  must  release  their  prisoners,  however,  give 
up  all  booty  and  captured  property,  and  surrender 
their  arms  during  the  period  of  their  sojourn  upon 
neutral  soil.  The  enemy  must  cease  his  pursuit  at 
the  neutral  boundary.  Should  he  continue  it  farther 
his  act  is  one  of  invasion,  and  would  be  properly  re- 
garded as  an  act  of  hostility  by  the  neutral  state 
whose  sovereignty  is  offended.  Should  either  bellig- 
erent undertake  to  perform  acts,  within  the  territory 
of  a  friendly  state,  which  are  inconsistent  with  the 
neutrality  of  that  state,  the  neutral  may  not  only  cause 
such  acts  to  be  immediately  desisted  from,  but  may 
punish  the  agents  of  the  belligerent,  if  their  acts  are 
in  violation  of  its  municipal  laws,  or  may  forcibly  eject 
them  from  its  territory. 

This  subject  is  illustrated  by  the  cases  of  the  Ches- 
apeake and  the  Florida. 

Case  of  the  Chesapeake. — The  Chesapeake  was  one  of 
a  line  of  passenger  steamers  plying  between  the  ports 
of  Xew  York  and  Portland,  Maine.  In  18G3,  Avhile  on 


308  OUTLINES  OF  INTERNATIONAL  LAW. 

her  way  between  those  points,  she  was  forcibly  seized 
by  a  number  of  her  passengers,  who  claimed  to  be  in  the 
naval  service  of  the  Confederate  States.  In  effecting 
the  seizure  several  of  the  crew  were  killed  and  wound- 
ed, and  the  rest  were  set  on  shore.  The  vessel  was 
navigated  for  a  short  time  by  its  captors,  but  was  final- 
ly abandoned  by  them,  in  an  unfrequented  bay  on  the 
coast  of  Nova  Scotia.  She  was  afterward  found  and 
seized,  in  British  territorial  waters,  by  a  public  armed 
vessel  of  the  United  States.  The  act  was  complained 
of  by  the  British  government  as  a  violation  of  its  neu- 
trality, and  a  demand  was  made  that  the  vessel  be  sur- 
rendered and  the  prisoners  restored  to  British  soil. 
The  demand  was  acceded  to  by  the  United  States,  who 
disclaimed  any  intention  of  exercising  any  authority 
within  the  territorial  jurisdiction  of  Great  Britain. 
The  government  of  the  United  States,  in  complying 
with  the  demand  for  the  surrender  of  the  property 
and  persons,  proposed  that  those  who  had  been  con- 
cerned in  the  forcible  seizure  of  the  vessel  should  be 
surrendered,  with  a  view  to  their  prosecution  for  the 
crime  of  piracy.  The  British  government  declined  to 
consider  this  proposition  until  the  captured  persons 
had  been  returned  to  its  territorial  jurisdiction.  The 
ship  was  afterward  restored  to  its  owners.1 

Case  of  the  Florida. — In  1864  the  Confederate  war 
steamer  Florida  entered  the  port  of  Bahia,  Brazil,  for 
the  purpose  of  obtaining  coal  and  provisions,  and  of  ef- 
fecting some  necessary  repairs.  "While  thus  engaged, 
the  "Wachusett,  a  public  armed  vessel  of  the  United 
States,  entered  the  same  port.  The  Brazilian  govern- 

1  Bevel's  Wheaton,  pp.  498,  499;  Dana's  Wheaton,  p.  210,  note. 


NEUTRALITY.  309 

nient,  fearing  a  conflict,  took  such  precautions  as  it 
deemed  proper  to  prevent  its  occurrence,  and,  in  ac- 
cordance with  its  port  regulations,  assigned  an  anchor- 
ing-ground  to  each  of  the  belligerent  vessels.  The 
commander  of  the  "Wachusett,  taking  advantage  of 
the  absence,  at  night,  of  a  number  of  the  officers  and 
crew  of  the  Florida,  sent  a  boat's  crew  to  attach  a 
cable  to  the  Confederate  steamer,  towed  her  out  of 
the  harbor,  and  conveyed  her  as  a  prize  to  the  United 
States.  This  flagrant  violation  of  neutral  rights  was 
at  once  complained  of  by  the  Brazilian  government. 
The  act  was  promptly  disavowed  by  the  United  States. 
An  apology  was  offered,  and  reparation  made  by  sa- 
luting the  Brazilian  flag  in  the  port  of  Bahia.  The 
crew  of  the  Florida  were  restored  to  Brazilian  juris- 
diction. The  captured  vessel  foundered  in  Hampton 
Roads,  under  circumstances  which  were  satisfactorily 
explained  to  the  Brazilian  government.1  "  The  resti- 
tution of  the  ship  having  thus  become  impossible,  the 
President  expressed  his  regret  that  the  sovereignty  of 
Brazil  had  been  violated,  dismissed  the  consul  at  Bahia, 
who  had  advised  the  offence,  and  sent  the  commander 
of  the  Wachusett  before  a  court-martial." a 

NEUTBAIJTY  LAWS. 

11.  Those  municipal  laws  of  a  state  which  are  intended 
to  prevent  violations  of  its  neutrality  in  time  of  war 
are  called,  in  general,  neutrality  laws.  The  title  varies 
in  different  states,  and  in  many  cases  is  based  upon 

1  Boyd's  Wheaton,  p.  499;  Hall,  p.  544;  Dana's  Wheaton,  p.  209, 
note.  See  also  Secretary  Seward's  letter  of  explanation,  "Foreign 
Relations  of  the  United  States,"  1863, 1864. 

a  Bernard,  "Neutrality  of  England,"  etc.,  p.  433. 


310  OUTLINES  OF  INTERNATIONAL  LAW. 

the  particular  violation  of  neutrality  which  was  first 
made  the  subject  of  positive  legislation.1 

Neutral  Obligation  Determined  by  International,  not 
Miinicipal,Law. — It  has  been  seen  that  the  neutral 
obligation  of  a  state  is  determined  by  international, 
and  not  by  municipal,  law.  The  conduct  of  every 
state,  which  assumes  the  position  of  a  neutral  in  war, 
is  therefore  measured  by  the  standard  of  International 
Law.  If  it  fails  in  the  performance  of  a  neutral  duty, 
it  cannot  plead  the  inefficiency  of  its  municipal  laws 
in  extenuation  of  its  offence,  nor  will  an  exact  and  rig- 
orous enforcement  of  such  laws  be  regarded  as  a  ful- 
filment of  its  obligation,  if  their  provisions  are  not  in 
accordance  with  the  international  standard.  The  neu- 
trality laws  of  a  state  may  therefore  be,  in  point  of 
efficiency,  less  than,  equal  to,  or  greater  than  the  stand- 
ard of  neutral  obligation  as  determined  by  the  law  of 
nations ;  or  there  may  be  no  such  municipal  laws.  In 
all  these  cases  the  responsibility  of  the  state  is  precise- 
ly the  same. 

Most  modern  states,  however,  have  covered  this  field 
of  legislation  more  or  less  completely,  either  with  posi- 
tive laws,  defining  rules  of  conduct  for  persons  subject 
to  their  jurisdiction,  and  imposing  suitable  penalties 
for  their  violation ;  or  by  general  laws,  or  constitutional 
provisions,  vesting  discretionary  powers  in  certain  de- 
partments of  government,  to  be  used  for  the  purpose 
of  preventing  violations  of  neutrality  on  the  part  of 

1  In  England  the  first  legislation  on  the  subject  \vas  caused,  in  the 
time  of  James  I.,  by  the  enlistment  of  recruits  in  England  for  ser- 
vice in  other  European  armies.  For  this  reason  the  British  neu- 
trality laws  have  received  the  name  of  the  "Foreign  Enlistment 
Act." 


NEUTRALITY.  31 1 

individuals.  Violations  of  neutral  duty  by  a  state,  in 
its  corporate  capacity,  are  questions  of  state  policy 
that  are  rarely  made  the  subject  of  municipal  legisla- 
tion. Neutrality  laws,  as  such,  have  chiefly  to  do  with 
the  acts  of  individuals.  They  permit  or  forbid  partic- 
ular acts,  and  vest  suitable  powers  of  enforcement  in 
certain  officials,  or  departments  of  government. 

English  Neutrality  Laws. — The  first  legislation  in 
England  on  the  subject  of  neutrality  was  had  in  the 
reign  of  James  I.  The  statute  was  intended  to  regu- 
late, rather  than  prohibit,  the  enlistment  of  British  sub- 
jects in  foreign  services.1  This  statute  was  twice  amend- 
ed during  the  reign  of  George  II.,  each  time  in  the  di- 
rection of  greater  severity.2  The  first  general  law  on 
the  subject  of  neutrality  was  the  Foreign  Enlistment 
Act  passed  in  1819,  during  the  regency.3  It  remained 
in  force  until  1870,  when  the  present  act  was  passed.4 

"  The  statute  of  1819  was,  with  a  few  unimportant 
exceptions,  never  attempted  to  be  enforced  until  the 
period  of  the  American  Civil  War.  Its  deficiencies 
were  then  fully  discovered,  and  the  escape  of  the  Ala- 
bama, the  Treaty  of  Washington  in  1871,  and  the 
Geneva  Arbitration  were  the  grave  consequences." & 

The  neutrality  laws  now  in  force  in  the  British  em- 
pire are  those  contained  in  what  is  known  as  the  For- 
eign Enlistment  Act  of  1870.  They  extend  to  all  the 
dominions  of  Her  Majesty,  including  the  adjacent  ter- 
ritorial waters.  The  act  forbids  British  subjects  to 
accept,  or  agree  to  accept,  a  commission  in  the  niili- 

1  3  James  I.,  chap.  4. 

9  9  George  II.,  chap.  30;  29  George  II.,  chap.  17. 

8  59  George  III.,  chap.  69.  4  33  and  34  Victoria,  chap.  90. 

*  Phillimore,  vol.  iii.,  p.  244 


312  OUTLINES  OF  INTERNATIONAL  LAW. 

tary  or  naval  service  of  a  state  at  war  with  any  state 
with  which  Her  Majesty  is  at  peace ;  to  leave  the  realm 
with  intent  to  engage  in  such  service,  or  to  induce 
another  person  to  embark  under  false  representations 
as  to  such  service;  and  imposes  a  penalty  upon  any 
master  of  a  ship  who  knowingly  takes  such  persons 
on  board  ship,  with  intent  to  carry  them  to  such  state. 
It  is  also  forbidden  under  severe  penalties  of  fine  and 
imprisonment — 

(a.)  "  To  build,  or  agree  to  build,  or  to  cause  to  be 
built,  any  ship  with  intent  or  knowledge,  or  having 
reasonable  cause  to  believe  that  the  same  shall  or  will 
be  employed  in  the  military  or  naval  service  of  any 
foreign  state  at  war  with  any  friendly  state. 

(5.)  "  To  issue  or  deliver  any  commission  for  any 
ship  with  intent  or  knowledge,  or  having  reasonable 
cause  to  believe,  that  the  same  shall  or  will  be  em- 
ployed in  the  military  or  naval  service  of  any  foreign 
state  at  war  with  any  friendly  state. 

(c.)  "  To  equip  any  ship,  with  intent  or  knowledge, 
or  having  reasonable  cause  to  believe,  that  the  same 
shall  or  will  be  employed  in  the  military  or  naval  ser- 
vice of  any  foreign  state  at  war  with  any  friendly  state. 

(d.)  "  To  despatch,  or  cause,  or  allow  to  be  despatched, 
any  ship  with  intent  or  knowledge,  or  having  reason- 
able cause  to  believe,  that  the  same  shall  or  will  be 
employed  in  the  military  or  naval  service  of  any  for- 
eign state  at  war  with  a  friendly  state." 

When  a  ship  is  built  by  the  order  of  a  foreign  state, 
at  war  with  a  friendly  state,  the  presumption  is  that 
it  is  intended  for  the  naval  service  of  the  former  state. 

It  is  also  forbidden  to  increase  the  armament,  equip- 
ment, or  force  of  such  ships,  or  to  aid  in  their  con- 


NEUTRALITY. 

struction  or  equipment,  and  it  is  also  forbidden  to  fit 
out,  or  aid  or  assist  in  fitting  out,  any  expedition 
against  the  dominions  of  a  friendly  state.  The  ships 
engaged  in  such  acts  are  to  be  forfeited,  and  penalties 
of  fine  and  imprisonment  are  to  be  imposed  upon  all 
persons  violating  any  of  the  provisions  of  the  act.1 

The  provisions  of  this  act  are  of  the  most  stringent 
character,  and,  if  rigidly  enforced,  are  calculated  to 
prevent  any  act,  on  the  part  of  any  person  within  the 
jurisdiction  of  Great  Britain,  which  can,  in  the  re- 
motest degree,  compromise  the  neutrality  of  the  Brit- 
ish government. 

Neutrality  Laws  of  the  United  States. — The  neutral- 
ity laws  of  the  United  States  are  chiefly  contained  in 
the  acts  of  June  5, 1794,  and  April  20, 1818.  By  these 
acts  it  is  declared  a  misdemeanor  for  any  citizen  of 
the  United  States  to  accept  or  exercise  a  commission 
to  serve  a  foreign  state  in  war  against  any  friendly 
state ;  or  to  enlist,  or  enter  himself,  or  hire  or  retain 
another  person  to  enlist,  or  to  go  beyond  the  jurisdic- 
tion of  the  United  States  to  enlist,  or  with  intent  to 
be  enlisted,  into  such  foreign  service,  or  to  fit  out  or 
arm ;  or  to  increase  or  augment  the  force  of  any  armed 
vessel,  with  the  intent  that  such  vessel  shall  be  em- 
ployed in  the  service  of  a  power  at  war  with  a  friend- 
ly state ;  or  to  begin,  set  on  foot,  or  provide  or  prepare 
the  means  for,  any  military  expedition  or  enterprise 
against  the  territory  of  any  foreign  state  with  whom 
the  United  States  is  at  peace. 

The  President  is  authorized  to  compel  any  foreign 
vessel  to  depart,  which,  by  the  law  of  nations  or  by 

1  33  and  34  Victoria,  chap.  90. 


314  OUTLINES  OF  INTERNATIONAL  LAW. 

treaty,  ought  not  to  remain  within  the  territorial 
waters  of  the  United  States,  and  is  given  power  to 
use  the  public  armed  force  to  carry  the  provisions  of 
the  act  into  effect,  and  to  enforce  the  observance  of 
the  neutral  duties  required  by  law.1 

It  is  worthy  of  remark  that  the  neutrality  laws  of 
the  United  States,  though  passed  nearly  seventy  years 
ago,  are  at  the  present  time  fully  in  accordance  with 
the  standard  of  neutral  obligation  as  determined  by 
International  Law. 

The  laws  of  both  England  and  the  United  States 
are  silent  upon  the  question  of  the  manufacture  and 
sale  of  contraband  of  war,  within  their  territorial  ju- 
risdiction, except  in  the  case  of  building,  arming,  or 
equipping  ships,  fitted  for,  or  adapted  to,  warlike  uses. 
Dealing  in  contraband  is  forbidden  in  England,  by 
proclamation,  at  the  outbreak  of  a  foreign  war.  It 
has  never  been  forbidden  in  the  United  States.  The 
policy  of  both  governments  has  been  to  leave  this 
question  to  be  regulated  by  belligerents,  in  the  exer- 
cise of  the  powers  placed  in  their  hands,  for  that  pur- 
pose, by  the  law  of  nations. 

Neutrality  Laws  of  Other  States. — The  provisions 
of  the  French  law  on  the  subject  of  neutrality  are 
those  contained  in  Articles  84  and  85  of  the  Penal 
Code.  The  first  of  these  imposes  a  penalty  of  banish- 
ment for  any  conduct  of  a  subject  which,  without  the 
approval  of  his  government,  exposes  the  state  to  a 
declaration  of  war.  If  war  actually  results,  the  pun- 
ishment is  increased  to  transportation.  The  second 
article  punishes  with  banishment  any  acts,  of  a  subject, 

1  "Revised  Statutes  of  the  United  States,"  1029-1031. 


NEUTRALITY. 

calculated  to  expose  Frenchmen  to  reprisals.  The  pre- 
cise acts  which  are  so  punishable  are  left  to  judicial 
determination,  and,  thus  far,  but  three  cases  have 
arisen  in  which  the  laws  were  regarded  as  applicable. 
The  responsibility  of  making  suitable  regulation  on 
the  subject  of  neutrality  rests,  in  France,  upon  the 
government,  and  is  usually  made  the  subject  of  proc- 
lamation, whenever  the  outbreak  of  war  makes  it  nec- 
essary for  France  to  assume  an  attitude  of  neutrality. 
The  task  of  the  government  in  this  respect  is  made 
easy  of  performance  by  the  fact  that  the  manufacture 
and  sale  of  the  most  offensive  forms  of  contraband  of 
war,  such  as  powder,  fire-arms,  ammunition,  and  pro- 
jectiles, are  made  the  subject  of  state  regulation.  It 
is,  therefore,  not  difficult  for  the  government,  at  the 
outbreak  of  war,  to  impose  such  additional  restrictions 
upon  the  manufacture  and  sale  of  contraband  articles 
as  will  effectually  prevent  violations  of  its  neutrality. 
The  absence  of  positive  law  on  the  subject  enables 
France  to  adapt  its  neutrality  regulations  to  the  stand- 
ard of  International  Law  at  any  particular  epoch ;  an 
advantage  which  is  shared  by  all  of  the  highly  cen- 
tralized governments  on  the  continent  of  Europe.  The 
law  and  practice  of  Belgium,  Brazil,  Italy,  Holland, 
Russia,  Spain,  and  Portugal  are  similar  to  those  of 
France.  Austria  and  Prussia  have  no  laws  upon  the 
subject,  and  seem  to  need  none,  as  ample  powers  to 
prevent  violations  of  neutrality  are  vested  in  the  re- 
spective governments.  The  laws  of  Denmark  and 
Sweden  are  quite  elaborate,  resembling  in  many  re- 
spects those  of  England  and  the  United  States.1 

12.  Case  of  the  Alabama.  —  The  most  conspicuous 
1  "Report  of  English  Neutrality  Laws  Commission  of  1870,"  p.  40. 


316  OUTLINES  OF  INTERNATIONAL  LAW. 

illustration,  in  recent  times,  of  the  failure  of  a  state 
to  observe  its  neutral  obligations,  is  that  afforded  by 
the  case  of  the  Alabama. 

The  complainant  in  the  case  was  the  United  States. 
The  injury  alleged  was  that  certain  aid  had  been  ob- 
tained by  the  Confederate  States  in  England  during 
the  rebellion. 

The  services  which  were  made  the  ground  of  com- 
plaint are  susceptible  of  classification  under  two  heads : 

(#.)  The  obtaining  of  arms  and  munitions  of  war  by 
the  Confederate  States  in  England. 

(5.)  The  fitting -out  of  hostile  expeditions  within 
English  jurisdiction. 

These  causes  of  complaint  will  be  discussed  sepa- 
rately. The  first  of  them  furnished  no  reasonable 
ground  of  complaint  to  the  United  States ;  the  second 
constituted  a  violation  of  the  law  of  nations. 

The  Obtaining  of  Arms  and  Munitions  of  War. — 
The  outbreak  of  the  civil  war  in  America  found  both 
parties  to  its  operations  but  poorly  prepared  for  a  con- 
test of  the  magnitude  which  that  struggle  immediately 
assumed,  and  both  belligerents  were  obliged  to  have 
recourse  to  foreign  markets  for  the  supplies  of  arms 
and  munitions  necessary  to  enable  them  to  place  great 
armies  in  the  field.  "  The  demands  of  the  war,  as  it 
advanced,  were  met  in  large  measure  by  private  manu- 
facturers in  the  Northern  States ;  but  the  export  of  arms 
and  military  stores  went  on  freely  and  without  inter- 
mission, so  long  as  the  struggle  lasted,  and  the  supplies 
drawn  by  the  Federal  government  from  [England] 
appear  to  have  considerably  exceeded  in  value  those 
obtained  by  the  South. 

"  An  export  trade,  more  or  less  considerable,  in  arms 


NEUTRALITY. 


317 


and  munitions  of  "war,  was  carried  on  from  England 
to  both  the  northern  and  southern  ports  of  the  United 
States.  Whether  the  goods  were  purchased  ia  the 
English  market  by  persons  who  came  over  for  the  pur- 
pose, or  were  shipped  to  order,  or  were  consigned  for 
sale  in  America  on  account  of  the  shippers ;  whether 
the  purchases  were  effected  by  agents  of  the  two  gov- 
ernments respectively  or  by  private  speculators,  and 
whether  these  agents  or  speculators  were  American  or 
English  firms  trading  in  New  York  or  firms  trading 
in  Charleston,  I  do  not  know,  and  it  is  absolutely  im- 
material to  inquire.  Xone  of  these  circumstances 
could  affect  in  the  slightest  degree  the  character  of 
the  transaction.  Articles  of  military  use,  when  trans- 
ported over  sea,  to  the  ports  of  either  belligerent  in 
neutral  ships,  are,  during  the  transit,  designated  con- 
traband, and  may  be  captured  under  the  neutral  flag, 
the  neutral  carrier  suffering  the  loss  of  his  freight, 
and  getting  no  compensation  for  the  interruption  of 
his  voyage  and  the  breaking-up  of  his  cargo." l 

1  Bernard,  "The  Neutrality  of  Great  Britain  during  the  Ameri- 
can Civil  War,"  pp.  332,  333.  In  Sir  Montague  Bernard's  able 
work,  from  which  the  above  citation  is  made,  the  following  table 
appears.  It  purports  to  give  the  total  value  of  exports  of  arms  and 
munitions  of  war  to  the  United  States  and  to  the  British  West  Indies 
during  the  period  of  the  civil  war.  It  is  interesting  as  showing  the 
amount  of  contraband  trade  that  went  on  during  that  period. 


Years. 

Shipments  to  the 
United  States. 

Shipments  to 
British  West  Indies. 

1860 

£45,076 

£6,050 

1861 

119,555 

59,110 

1862 

999,197 

367,578 

1863 

425,081 

200,402 

1864 

36,802 

74,983 

1865 

23,625 

29,420 

1866 

82,345 

4,795 

318  OUTLINES  OF  INTERNATIONAL  LAW. 

With  these  transactions,  whatever  part  may  have 
been  taken  in  them  by  British  subjects  or  others  with- 
in British  jurisdiction,  International  Law  has  nothing 
to  do ;  and  of  these  acts,  whether  of  dealing  in,  or  car- 
rying contraband,  or  violating  the  blockade,  the  United 
States  had  no  valid  reason  to  complain.  On  the  con- 
trary, on  at  least  two  previous  occasions,  the  last  of 
them  but  a  few  years  previous  to  the  outbreak  of  the 
rebellion,  citizens  of  the  United  States  had  themselves 
openly  engaged  in  similar  practices,  with  the  full  knowl- 
edge and  presumed  consent  of  their  own  government, 
as  expressed  in  the  annual  message  of  its  chief  execu- 
tive.1 

The  Fitting-out  of  Hostile  Expeditions  within  Eng- 
lish Jurisdiction. — "  Among  the  most  pressing  needs 
of  the  Confederates  was  that  of  sea-going  ships  capa- 
ble of  being  used  for  war.  Such  vessels  as  they  pos- 
sessed were,  for  the  most  part,  very  small.  There  was 
probably  not  one  of  these  which  could  have  ventured 
to  engage  a  Federal  cruiser  of  any  class  without  cer- 
tain destruction.  In  coast  warfare  they  were  able  to 
achieve  one  or  two  brilliant,  though  unprofitable,  suc- 
cesses. But  the  construction  of  a  large  sea-going  steam- 
er seems  to  have  been  beyond  their  power ;  their  only 
ships  were  such  as  had  fallen  into  their  hands ;  and 
they  either  had  not  the  materials  and  machinery  for 
turning  out  marine  steam-engines,  or  were  unable  to 
use  them."  a 

To  enable  the  Confederates  to  overcome  this  dispar- 
ity of  force  at  sea  a  scheme  was  projected  of  procur- 

1  Message  of  President  Pierce,  1854,  "Executive  Documents  of 
the  United  States,"  1854,  1855. 
1  Bernard,  "The  Neutrality  of  Great  Britain,"  etc.,  p.  C3G. 


NEUTRALITY. 

ing  by  purchase,  in  England,  a  number  of  war-steam- 
ers for  the  Confederate  navy.  This  undertaking  was 

«/  o 

quite  different  from  those  that  had  preceded  it,  inas- 
much as  it  was  proposed  that  these  vessels,  so  soon  as 
they  had  been  completed  and  equipped 'for  war,  wheth- 
er in  England  or  elsewhere,  should,  without  being  sent 
to  any  port  within  the  jurisdiction  of  the  Confederacy, 
at  once  engage  in  hostile  operations  against  the  United 
States.  With  this  end  in  view,  agents  were  despatched 
to  England  with  instructions  to  arrange  for  the  pur- 
chase, or  construction,  of  a  number  of  swift  and  pow- 
erful steamers.  These  agents  were  to  arrange  all  the 
details  of  purchase  or  manufacture  of  armament  and 
equipment,  and  were  to  transfer  them,  when  complet- 
ed and  ready  for  service,  to  certain  designated  officers 
of  the  Confederate  navy. 

These  instructions  were  carried  out  in  all  their  es- 
sential details.  The  ships,  three  in  number,  which 
were  afterward  known  as  the  Florida,  Alabama,  and 
Shenandoah,  were  purchased  or  constructed  in  Eng- 
land. Their  armament  and  equipment  were  obtained, 
and  a  portion  of  their  crews  enlisted,  in  British  terri- 
tory, without  encountering  any  obstacles  which  do  not 
seem  to  have  been  overcome  without  special  difficulty. 
In  every  case  the  ships  left  England  without  guns  or 
ammunition  on  board,  and  but  partly  manned ;  and  in 
every  case  the  articles  needed  to  prepare  the  vessel 
for  active  service,  and  a  part  or  the  whole  of  the  crew, 
were  shipped  from  England  by  another  vessel;  the 
equipment  being  completed  at  a  point  previously  agreed 
upon,  usually  in  neutral  waters,  and  never  within  Brit- 
ish jurisdiction. 

The  question  now  arises  as  to  what  was  the  rule  or 


320  OUTLINES  OF  INTERNATIONAL  LAW. 

usage  of  International  Law  upon  the  subject  of  neu- 
tral duty  in  1861 ;  for  by  that  rule  the  responsibility 
of  England,  as  a  neutral  power,  must  be  determined. 

It  has  been  seen  that  the  neutral  obligation  of  a 
state,  at  any  time,  is  fixed  and  determined  by  interna- 
tional, and  not  by  municipal,  law.  It  has  also  been 
seen  that  that  obligation  is  the  same,  whatever  may 
be  the  provisions  of  municipal  law  upon  the  subject ; 
indeed,  it  is  not  at  all  necessary  that  its  municipal 
laws  should  contain  any  such  provisions.  Their  exist- 
ence presumes  an  intention,  on  the  part  of  a  state,  to 
fulfil  its  neutral  duties.  Their  absence  may  imply  the 
contrary ;  or  it  may  imply  that  some  department  of  the 
government  has  sufficient  power  in  the  premises  to 
make  such  provisions  unnecessary.  If  they  exist,  and 
are  inadequate  to  the  purpose,  their  inadequacy  can- 
not be  pleaded  in  extenuation  of  a  violation  of  neutral 
duty ;  if  they  do  not  exist,  their  absence  cannot  be 
alleged  to  excuse  a  failure  to  observe  a  neutral  obliga- 
tion ;  nor,  finally,  can  their  enforcement,  by  obscuring 
the  real  issue  involved,  or  by  distracting  the  atten- 
tion of  a  neutral  state  from  its  real  responsibility, 
at  all  diminish  that  responsibility,  or  change  its  char- 
acter. 

In  this  connection  two  questions  arise.  The  first  is, 
did  war  exist  ?  If  there  was  not  in  existence  at  that 
time  an  open,  public  war,  there  could  be  no  belliger- 
ents, and  consequently  no  neutrals;  and,  whatever 
may  have  been  the  relation  existing  between  England 
and  the  United  States,  it  was  not  that  of  a  neutral  to 
a  belligerent.  This  question  hardly  admits  of  discus- 
sion. When  insurrection  or  rebellion  occurs  in  a  state, 
two  courses  of  proceeding  are  open  to  the  central  gov- 


NEUTRALITY.  321 

eminent,  either  of  which  may  be  pursued  in  its  sup- 
pression. These  are : 

(a.}  The  method  by  Municipal  Law,  in  which  the  at- 
tempt is  made  to  restore  the  supremacy  of  the  govern- 
ment by  a  rigid  enforcement  of  the  criminal  law,  mil- 
itary force  being  used  to  support  the  civil  authority. 

(£.)  The  method  by  International  Law,  involving  the 
recognition  of  the  insurgents  as  having  belligerent 
rights,  and  the  use  of  military  force  in  accordance 
with  the  laws  of  war. 

The  United  States  chose  the  latter  method.  This 
made  it  necessary  for  other  powers  to  follow  its  ex- 
ample, and  to  recognize  the  insurgents  as  belligerents, 
which  they  did  by  the  issue  of  proclamations  of  neu- 
trality. By  the  issue  of  such  a  proclamation  England 
assumed  the  attitude  of  a  neutral,  and  by  so  doing  be- 
came charged  with  the  duties,  and  vested  with  the 
rights,  of  a  neutral  state  in  time  of  war. 

Standard  of  Neutral  Obligation  in  1861. — The  next 
question  is,  what  was  the  standard  of  neutral  obliga- 
tion, as  at  that  time  recognized  and  sanctioned  by  the 
law  of  nations  ?  To  the  answer  of  this  question  it  is; 
perhaps,  fortunate  that  the  injuries  which  made  the 
rule  necessary,  and  the  deduction  of  the  rule  itself, 
were  then  relatively  recent  events,  and  so  were  pre- 
sumably fresh  in. the  minds  of  those  by  whom  the 
government  of  England  was  carried  on. 

During  the  years  between  1789  and  179-i,  England 
and  France  being  then  belligerents,  several  attempts 
were  made,  by  agents  of  France  in  the  United  States, 
to  fit  out  and  arm  certain  ships  to  prey  upon  English 
commerce.  Upon  proper  representation,  in  behalf  of 
the  latter  power,  the  government  of  the  United  States 
21 


322  OUTLINES  OF  INTERNATIONAL  LAW. 

took  the  most  vigorous  measures  to  bring  about  a  dis- 
continuance of  the  practice,  and,  to  enable  similar  ac- 
tion to  be  taken  in  future  cases  of  the  same  kind,  the 
Neutrality  Act  of  1794  was  passed. 

During  the  period  between  1816  and  1818  similar 
attempts  were  made  to  fit  out  and  arm  vessels,  within 
the  jurisdiction  of  the  United  States,  to  operate  against 
Spanish  commerce,  under  commissions,  or  letters  of 
marque,  from  the  revolted  Spanish  colonies  in  Central 
and  South  America.  In  this  instance  the  Spanish  min- 
ister "  complained  that  some  thirty  vessels,  specifically 
named,  the  property  of  American  citizens,  were  thus 
preying  on  Spanish  commerce.  The  representative  of 
Portugal  made  similar  complaints." l  To  remedy  this 
wrong  the  United  States  Neutrality  Act  of  1818  was 
passed.  It  was  more  stringent  in  its  provisions  than 
had  been  that  of  1794,  and  was,  for  that  reason,  better 
calculated  to  prevent  acts  on  the  part  of  individuals 
which  were  likely  to  compromise  the  neutrality  of  the 
United  States. 

Similar  practices  were  resorted  to  in  England,  and, 
proper  representations  having  been  made  by  Spain,  an 
attempt  was  made  to  remedy  the  wrong  complained 
of,  by  the  passage  of  the  "  Foreign  Enlistment  Act  of 
1819,"  the  first  British  neutrality  act  which  was  in- 
tended to  have  general  application,  and  to  prevent 
and  punish  acts  of  individuals  which  might  have  the 
effect  of  compromising  the  foreign  relations  of  Great 
Britain  as  a  neutral  power.  This  act  was  in  force 
during  the  period  of  the  Civil  War. 

1  Opinion  of  Sir  Alexander  Cockburn  in  the  Geneva  case,  "  For- 
eign Relations  of  the  United  States,"  1872,  "Geneva  Arbitration/ 
vol.  iv.,  p.  256. 


NEUTKALITY.  323 

Here  are  three  instances  in  each  of  which  a  sovereign 
state,  in  the  most  solemn  and  formal  manner,  recog- 
nizes the  fact  that  the  acts  of  fitting-out  and  arming 
or  equipping  of  expeditions,  within  its  jurisdiction,  for 
the  purpose  of  carrying  on  hostilities  against  a  friend- 
ly state,  are  not  only  unjust  and  wrong,  but  are  so  far 
opposed  to  the  law  and  usage  of  nations  as  to  consti- 
tute a  serious  violation  of  neutrality  on  the  part  of  the 
government  permitting  them. 

Conclusion  as  to  Neutral  Obligation. — In  the  face  of 
these  facts,  it  is  useless  to  cite  the  opinions  of  text- 
writers.  Their  views  and  opinions  are  based  upon  such 
facts,  and  the  rules  deduced  by  them,  to  have  value, 
must  be  supported  by  just  such  instances  of  interna- 
tional usage  and  intercourse.  The  conclusion  based 
upon  these  facts  must  therefore  be  that,  as  the  law  of 
nations  stood  in  1861,  the  fitting-out,  arming,  or  equip- 
ping, within  the  jurisdiction  of  a  neutral  state,  of  a 
vessel  intended  to  cany  on  direct  hostile  operations 
against  a  friendly  state,  was  a  violation  of  Interna- 
tional Law. 

It  has  been  seen  that,  during  the  continuance  of  the 
civil  war,  three  war-steamers  were  obtained  by  the 
Confederate  States,  in  England,  by  purchase  and  con- 
struction. Over  the  acts  of  those  persons  within  its 
jurisdiction,  who  had  to  do  with  such  purchase  and 
construction,  the  British  government  had  undisputed 
control.  Its  duty  and  responsibility  in  the  premises 
should  have  been  known  to  the  individual  members  of 
the  government ;  and  the  ease  with  which  the  Ameri- 
can minister  was  able  to  obtain  detailed  information 
as  to  the  purpose  and  ultimate  destination  of  these 
vessels  shows  that  no  insuperable  difficulties  lay  in  the 


324:  OUTLINES  OF  INTERNATIONAL  LAW, 

way  of  its  obtaining  similar  knowledge,  upon  which 
to  act  in  the  performance  of  its  neutral  duty. 

Manner  in  which  the  Neutral  Duty  of  England  was 
Performed. — In  the  performance  of  its  duty  as  a  neu- 
tral, however,  the  British  government  displayed  not 
only  a  singular  and  unusual  lack  of  energy  and  vigi- 
lance, but  a  more  remarkable  failure  to  discern  the 
true  point  at  issue.  In  a  manner  entirely  in  accordance 
with  English  tradition,  it  seems  to  have  been  taken 
for  granted  that  a  more  or  less  vigorous  enforcement 
of  the  existing  neutrality  laws  would  constitute  a  suf- 
ficient performance  of  its  neutral  duty,  and  a  sufficient 
fulfilment  of  its  neutral  obligation.  The  action  of  the 
government,  therefore,  was  not  only  confined  to  the 
enforcement  of  its  neutrality  law,  but  a  peculiar  con- 
struction was  placed  upon  that  law,  by  which  it  was 
deemed  no  violation  of  its  provisions  to  construct  a 
ship,  even  for  an  admitted  warlike  purpose,  if  no  por- 
tion of  its  equipment  and  armament  was  contributed 
by  its  builders,  or  placed  on  board  within  British  terri- 
torial jurisdiction. 

Responsibility  of  England  in  the  Case. — From  what 
mistaken  view  of  international  duty  such  an  idea  was 
deduced  it  is  not  necessary  to  discuss  here.  Acts  like 
those  of  which  the  United  States  complained  were  op- 
posed to  the  usages  of  nations,  because  they  constituted 
hostile  attempts  against  a  friendly  power,  and  origi- 
nated within  neutral  jurisdiction.  A  belligerent  has 
no  right,  or  color  of  right,  to  interfere  in  any  manner 
with  the  internal  administration  of  a  sovereign  state. 
He  must  judge  of  the  attitude  and  intentions  of  that 
state  by  its  acts,  or  by  the  acts  of  individuals  which 
have  originated  within  its  territory.  If  an  act  of  hos- 


NEUTRALITY.  335 

tility  originate  in  a  neutral  state,  it  matters  not  by 
whom  it  is  committed,  the  neutral  is  entirely  respon- 
sible for  its  effects  and  results,  whatever  they  may  be ; 
and  no  other  course  is  open  to  a  belligerent  than  to 
hold  such  neutral  to  a  strict  accountability  for  events 
over  which  he  has,  and  may  exercise,  a  jurisdiction  in 
every  way  adequate  to  his  responsibility. 

Later  History  of  the  Confederate  Cruisers. — Of  the 
three  cruisers  whose  origin  has  been  alluded  to  the  ca- 
reer may  be  briefly  told.  The  Florida,  on  Aug.  11, 
1862,  completed  her  armament  in  neutral  West  Indian 
waters,  and  entered  upon  her  duty  of  destroying  mer- 
chant vessels.  Her  career  was  terminated  in  October, 
1864,  by  her  illegal  capture  in  the  port  of  Bahia,  Brazil. 

The  Alabama,  in  spite  of  the  urgent  remonstrances 
of  the  American  minister,  effected  her  departure  from 
English  waters  on  the  29th  of  July,  1862.  Her  arma- 
ment and  crew  were  placed  on  board  at  Angra  Bay, 
in  the  Azores  Islands,  near  the  end  of  the  following 
month.  After  a  most  eventful  career,  during  which 
she  succeeded  in  capturing  or  destroying  fifty-eight 
merchant-vessels,  she  was  defeated  and  sunk  in  an  en- 
gagement with  the  United  States  steamer  Kearsarge, 
off  the  port  of  Havre,  France,  on  June  19, 1864. 

The  Shenandoah,  a  steamer  formerly  engaged  in  the 
China  trade,  attracted  the  attention  of  the  Confederate 
agents  in  London  by  her  speed  and  superior  sailing 
qualities,  as  well  as  by  her  adaptability  to  the  purposes 
which  they  had  in  view.  She  was,  therefore,  purchased, 
and  on  October  8, 1864,  cleared  from  the  Thames,  osten- 
sibly for  Bombay.  Her  real  destination,  however,  was 
the  Island  of  Madeira,  whither  a  tender  had  preceded 
her,  containing  her  armament  and  crew.  The  transfer 


326  OUTLINES  OF  INTERNATIONAL  LAW. 

was  effected  in  neutral  jurisdiction,  as  in  the  preceding 
cases,  about  October  21st  of  the  same  year.  The  evi- 
dence submitted  in  the  case  of  this  vessel  satisfied  the 
Geneva  Board  of  Arbitration  that  no  responsibility  at- 
tached to  the  British  government  for  her  conduct  up 
to  the  date  of  her  arrival  at  Melbourne,  Australia. 
The  circumstances  attending  her  conduct  there  should 
have  caused  her  detention,  but  did  not,  and  for  her  acts, 
after  the  date  of  her  departure  from  Melbourne,  the 
British  government  was  held  responsible.  The  career 
of  this  vessel  is  remarkable  from  the  fact  that  she  con- 
tinued to  make  captures,  in  the  North  Pacific,  after  the 
termination  of  hostilities  in  the  civil  war.  Upon  being 
notified  of  the  peace  in  July,  1865,  she  was  conveyed 
by  her  captain  to  Liverpool,  and  was  there  surrendered 
to  the  British  government.1 

Result  of  their  Operations. — The  result  of  the  opera- 
tions of  these  vessels  and  their  tenders  was,  in  effect, 
to  destroy  the  merchant  marine  of  the  United  States. 
Such  of  its  ships  as  escaped  capture  or  destruction  were 
transferred  to  foreign  flags,  to  secure  an  immunity 
from  capture  by  acquiring  the  neutral  character.  The 
question  continued  an  open  one  between  the  govern- 
ments for  a  number  of  years,  subjecting  their  relations 
to  a  constant  strain,  and  at  times  taking  such  a  turn  as 
to  render  war  between  them  a  not  unlikely  occurrence. 
Several  attempts  at  settlement  were  made,  but  without 
success,  owing  to  the  excited  state  of  feeling  at  the 
time.  The  question  was  finally  put  in  the  way  of  ad- 
justment by  the  negotiation  of  the  Treaty  of  Wash- 
ington, in  1871. 

1  For  Captain  Waddell's  letter  to  the  Secretary  of  Foreign  Affairs, 
surrendering  this  vessel,  see  Bernard,  pp.  434-436. 


NEUTRALITY.  397 

THE   GENEVA  ARBITRATION. 

13.  The  most  striking  and  successful  example  of  the 
settlement  of  an  international  difference  of  the  gravest 
character,  by  a  resort  to  the  principle  of  arbitration,  is 
furnished  by  the  adjustment  of  the  dispute  between 
the  United  States  and  England  growing  out  of  the 
Alabama  claims. 

Unsuccessful  Attempts  at  Settlement. — It  was  impos- 
sible that  a  difference  of  such  serious  importance  could 
long  exist  without  endangering  the  friendly  relations 
of  the  two  powers,  and,  at  different  times  between  the 
years  1863  and  1869,  efforts  were  made  with  a  view  to 
its  adjustment.  None  of  them,  however,  were  success- 
ful. The  first  attempt  was  made,  in  1863,  by  Mr. 
Adams,  the  United  States  minister  to  England.  He 
submitted  a  proposition  which  was  held  under  advise- 
ment, for  a  time,  by  the  British  cabinet,  but  was  final- 
ly declined  in  1865.  Another  effort  was  made  in  1866, 
and  negotiations  were  continued  until,  in  January, 
1868,  they  were  broken  cff,  apparently  without  hope 
of  renewal.  In  1869  they  were  again  renewed  by  Mr. 
Keverdy  Johnson,  who  had  succeeded  Mr.  Adams  as 
the  American  representative  in  England.  An  agree- 
ment was  entered  into,  between  Mr.  Johnson  and  the 
Earl  of  Clarendon,  by  which  the  claims  were  to  be  re- 
ferred to  a  commission  selected  by  the  interested  pow- 
ers. This  agreement  was  not  ratified  by  the  United 
States  Senate,  a  co-ordinate  branch  of  the  treaty-mak- 
ing power  in  that  state,  and  thus,  for  the  third  time, 
the  efforts  at  adjustment  were  abandoned. 

The  Treaty  of  Washington. — In  1870  a  dispute  arose 
between  the  United  States  and  Canada,  as  to  the  rights 


328  OUTLINES  OF  INTERNATIONAL  LAW. 

of  American  citizens  to  participate  in  the  fisheries  in 
certain  British  territorial  waters  of  North  America. 
As  the  agitation  of  the  question  seemed  likely  to  in- 
troduce a  new  element  of  difficulty  into  the  complica- 
tions already  existing  between  the  two  governments,  a 
proposal  was  submitted,  through  the  British  minister, 
to  the  government  in  Washington  for  the  appoint- 
ment of  a  Joint  Commission.  The  commission  was  to 
be  composed,  in  equal  numbers,  of  members  selected 
by  each  government,  and  was  to  be  charged  with  the 
adjustment,  not  only  of  the  fishing  dispute,  but  of  all 
questions  which  might  affect  the  relations  of  the  United 
States  with  the  British  possessions  in  North  America. 
To  this  proposition  a  reply  was  made,  in  behalf  of 
the  United  States,  that  the  project  of  the  commission 
would  not  be  favorably  considered,  unless  its  powers 
were  extended  to  include  the  settlement  of  the  differ- 
ences which  had  arisen,  during  the  civil  war,  out  of 
the  acts  committed  by  Confederate  cruisers;  which 
had  given  rise  to  the  demands  known  as  the  Alabama 
Claims.1 

The  proposition  of  the  United  States  was  accepted, 
and  an  agreement  was  entered  into  providing  for  the 
organization  of  a  commission  of  ten  members,  selected 
in  equal  numbers  by  the  governments  of  England  and 
the  United  States.  The  commission  was  to  sit  in  the 
city  of  "Washington,  and  was  to  address  itself  to  the 
task  of  providing  a  means  of  adjusting  all  causes  of 
difference  then  existing  between  the  two  countries. 

The  commission  thus  provided  for  met  in  Washing- 
ton on  March  4, 1871.  Its  labors  terminated  on  May 

1  Eevue  de  Droil  International,  tome  iii.,  1871,  p.  113 


NEUTRALITY.  329 

8,  with  the  completion  and  signature  of  the  Treaty  of 
Washington.  That  instrument  provided  for  the  ref- 
erence of  the  Alabama  Claims  to  a  tribunal  of  arbi- 
tration to  be  composed  of  five  members.  Of  these  one 
was  to  be  selected  by  each  of  the  contracting  parties, 
and  one  each  by  the  King  of  Italy,  the  President  of 
the  Swiss  Confederation,  and  the  Emperor  of  Brazil. 
The  tribunal  was  to  meet  in  Geneva,  on  the  earliest 
convenient  day  after  the  nomination  of  its  members. 
A  case  was  to  be  submitted,  by  each  of  the  contract- 
ing parties ;  and  within  four  months  thereafter  either 
party  might,  in  its  discretion,  submit  a  counter  case  in 
reply  to  the  evidence  and  correspondence  adduced  by 
the  other  in  support  of  its  claim. 

The  tribunal,  in  deciding  the  case,  was  to  be  guided 
by  three  rules  which  were  incorporated  in  the  treaty, 
and  mutually  agreed  to  by  the  litigant  powers.  The 
agreement  on  the  part  of  Great  Britain  was  qualified 
by  the  declaration  that  "Her  Majesty's  government 
cannot  assent  to  the  foregoing  rules  as  a  statement  of 
principles  of  International  Law  which  were  in  force 
at  the  time  when  the  claims  mentioned  arose,  but  that 
Her  Majesty's  government,  in  order  to  evince  its  de- 
sire of  strengthening  the  friendly  relations  between 
the  two  countries,  and  of  making  satisfactory  provis- 
ion for  the  future,  agrees  that  in  deciding  the  questions 
between  the  two  countries  arising  out  of  these  claims, 
the  arbitrators  should  assume  that  Her  Majesty's  gov- 
ernment had  undertaken  to  act  upon  the  principles  set 
forth  in  the  rules." ' 

The  three  rules  are, "  A  neutral  government  is  bound, 

1  "Treaties  and  Conventions  of  the  United  States,"  p.  416. 


330  OUTLINES  OF  INTERNATIONAL  LAW. 

(#.)  "  To  use  due  diligence  to  prevent  the  fitting-out, 
arming,  equipping,  within  its  jurisdiction,  of  any  ves- 
sel which  it  has  reasonable  ground  to  believe  is  in- 
tended to  cruise  or  carry  on  war  against  a  power  with 
which  it  is  at  peace ;  and  also  to  use  like  diligence  to 
prevent  the  departure  from  its  jurisdiction  of  any  ves- 
sel intended  to  cruise  or  carry  on  war  as  above,  such 
vessel  having  been  specially  adapted,  in  whole  or  in 
part,  within  such  jurisdiction,  to  warlike  use." 

(&.)  "Not  to  permit  or  suffer  either  belligerent  to 
make  use  of  its  ports  or  waters  as  a  base  of  naval  op- 
erations against  the  other,  or  for  the  purpose  of  the 
renewal  or  augmentation  of  military  supplies  or  arms, 
or  the  recruitment  of  men." 

(c.)  "  To  exercise  due  diligence  in  its  own  ports  and 
waters,  and,  as  to  all  persons  within  its  jurisdiction, 
to  prevent  any  violations  of  the  foregoing  obligations 
and  duties." 

Decision  and  Award, — The  decision  of  the  tribunal 
was  to  be  rendered,  if  possible,  within  three  months 
after  the  arguments  on  both  sides  had  been  closed.  It 
was  to  be  in  writing,  prepared  in  duplicate,  and  signed 
by  the  arbitrators  who  assented  to  it.  The  question 
referred  for  decision,  as  to  each  vessel  separately,  was 
"  whether  Great  Britain  has,  by  any  act  of  omission, 
failed  to  fulfil  any  of  the  duties  set  forth  in  the 
foregoing  three  rules,  or  recognized  by  the  principles 
of  International  Law  not  inconsistent  with  such 
rules." ' 

"  In  case  the  tribunal  finds  that  Great  Britain  has 
failed  to  fulfil  any  duty,  or  duties,  as  aforesaid,  it  may, 

1  "Treaties  and  Conventions  of  the  United  States,"  pp.  416,  417. 


NEUTRALITY.  331 

if  it  think  proper,  proceed  to  award  a  sum  in  gross,  to 
be  paid  by  Great  Britain  to  the  United  States,  for  all 
the  claims  referred  to  it ;  and  in  such  case  the  gross 
sum  so  awarded  shall  be  paid  in  coin  by  the  gov- 
ernment of  Great  Britain  to  the  government  of  the 
United  States,  at  Washington,  within  twelve  months 
after  the  date  of  the  award." ' 

"In  case  the  tribunal  find  that  Great  Britain  has 
failed  to  fulfil  any  duty,  or  duties,  as  aforesaid,' and 
does  not  award  a  sum  in  gross,  the  high  contracting 
parties  agree  that  a  board  of  assessors  shall  be  ap- 
pointed to  ascertain  and  determine  what  claims  are 
valid,  and  what  amount  or  amounts  shall  be  paid  by 
Great  Britain  to  the  United  States  on  account  of  the 
liability  arising  from  such  failures,  as  to  each  vessel, 
according  to  the  extent  of  such  liability  as  determined 
by  the  arbitrators." " 

Meeting  of  the  Board  of  Arbitration. — The  tribunal 
met  at  Geneva  on  December  15, 1871.  The  full  pow- 
ers of  the  arbitrators  were  exchanged,  and  the  board 
was  organized  by  the  selection  of  Count  Sclopis,  the 
Italian  representative,  as  president.  The  cases  were 
submitted  by  the  agents  of  the  respective  govern- 
ments, and  the  tribunal  directed  that  the  counter  cases, 
additional  documents,  correspondence,  and  evidence 
should  be  delivered  to  the  secretary  on  or  before  April 
15, 1872.  After  making  some  arrangements  as  to  pro- 
cedure, the  tribunal,  on  the  following  day,  adjourned 
to  meet  on  June  15,  1872. 

Indirect  Claims.  —  In  the  case  submitted  by  the 

1  "Treaties  and  Conventions  of  the  United  States,"  pp.  416,  417. 


332  OUTLINES  OF  INTERNATIONAL  LAW. 

United  States  certain  claims  appeared  for  damages 
due  under  the  heads  of— 

1st.  "The  losses  in  the  transfer  of  the  American 
commercial  marine  to  the  British  flag." 

2d.  "  The  enhanced  rates  of  insurance." 

3d.  "  The  prolongation  of  the  war,  and  the  addition 
of  a  large  sum  to  the  cost  of  the  war  and  the  suppres- 
sion of  the  rebellion."  The  consideration  of  these  in- 
direct claims  by  the  tribunal  was  objected  to  by  the 
agent  of  the  British  government;  and  the  tribunal 
decided  that,  according  to  the  rules  of  International 
Law  applicable  to  such  cases,  they  did  not  constitute 
a  good  foundation  for  an  award,  and  should  be  wholly 
excluded  from  the  consideration  of  the  tribunal  in 
making  its  award.  This  ruling  was  accepted  by  both 
of  the  governments  interested.1 

Decision  of  the  Arbitrators. — A  decision  was  reached 
by  the  tribunal  at  the  session  of  September  9,  1872. 
It  was  concurred  in  and  signed  by  four  of  the  mem- 
bers, the  English  representative  offering  a  dissenting 
opinion.  On  September  14,  after  directing  that  a  copy 
of  the  decision  should  be  delivered  to  each  of  the 
agents  of  the  two  governments,  the  tribunal  was  dis- 
solved. 

Decision  and  Award. — Before  the  members  of  the 
tribunal  were  able  to  apply  the  rules,  furnished  them 
in  the  treaty,  to  the  decision  of  the  case,  they  were 
obliged  to  place  an  interpretation  upon  some  of  the 
terms  there  used,  and  to  define  the  rule  of  Interna- 
tional Law  upon  certain  points,  which  were  involved 


1  "Foreign  Relations  of  the  United  States,"  "Geneva  Arbitra 
tion,"  vol.  iv.,  p.  20. 


NEUTRALITY.  333 

in  the  judicial  determination  of  questions  not  covered 
by  the  rules  themselves.  It  was  therefore  decided — 

(1.)  That  due  diligence  "ought  to  be  exercised  by 
neutral  governments  in  exact  proportion  to  the  risks 
to  which  either  of  the  belligerents  may  be  exposed, 
from  a  failure  to  fulfil  the  obligations  of  neutrality  on 
their  part." 

(2.)  "  The  effects  of  a  violation  of  neutrality  commit- 
ted by  means  of  the  construction,  equipment,  and  ar- 
mament of  a  vessel  are  not  done  away  with  by  any 
commission  which  the  government  of  the  belligerent 
power,  benefited  by  the  violation  of  neutrality,  may 
afterwards  have  granted  to  that  vessel ;  and  the  ulti- 
mate step,  by  which  the  offence  is  completed,  cannot 
be  admissible  as  a  ground  for  the  absolution  of  the 
offender,  nor  can  the  consummation  of  his  fraud  be- 
come the  means  of  establishing  his  innocence." 

(3.)  "  The  principle  of  exterritoriality  has  been  ad- 
mitted into  the  law  of  nations,  not  as  an  absolute 
right,  but  solely  as  a  proceeding  founded  on  the  prin- 
ciple of  courtesy  and  mutual  deference  between  different 
nations,  and  therefore  can  never  be  appealed  to  for  the 
protection  of  acts  done  in  violation  of  neutrality." l 

In  the  cases  of  the  Alabama,  of  the  Florida,  and  of 
the  Shenandoah  after  her  departure  from  Melbourne 
on  February  18, 1865,  the  tribunal  was  of  opinion  that 
Great  Britain  had  failed,  by  omission,  to  perform  the 
duties  prescribed  in  two  or  more  of  the  rules  of  Article 
YL  of  the  Treaty  of  Washington.9 


1  "Foreign  Relations  of  the  United  States,"  1872,  1873,  "Geneva 
Award,"  vol.  iv.,  pp.  49,  50. 
8  The  finding  in  the  case  of  the  Alabama  was  of  a  failure  in  re 


334  OUTLINES  OF  INTERNATIONAL  LAW. 

The  sum  of  $15,500,000  in  gold  was  awarded  to  the 
United  States  as  the  indemnity  to  be  paid  by  Great 
Britain,  for  the  satisfaction  of  all  the  claims  referred 
to  the  consideration  of  the  tribunal ;  and,  in  accordance 
with  the  terms  of  Article  XI.  of  the  treaty,  it  was  de- 
clared that  "  all  the  claims  referred  to  in  the  treaty  as 
submitted  to  the  tribunal  are  hereby  fully,  perfectly, 
and  finally  settled." a 

Results  of  the  Geneva  Arbitration. — The  effect  of 
the  Geneva  arbitration  upon  International  Law  has 
been  much  discussed,  especially  in  connection  with  a 
clause  in  the  treaty,  which  binds  the  high  contracting 
parties  "  to  observe  these  rules  as  between  themselves 
in  future,  and  to  bring  them  to  the  knowledge  of 
other  maritime  powers,  and  to  invite  them  to  accede 
to  them." 8  Neither  power  is  believed  to  have  made 
any  special  or  positive  efforts  to  include  other  states 
in  the  operations  of  the  treaty.  In  so  far  as  the  rules 
themselves  are  concerned,  such  action  seems  hardly 
necessary.  Their  effect  has  not  been  to  change  any 
existing  rule  of  International  Law,  for  the  strict  ob- 


spect  to  the  first  and  third  rules;  in  the  case  of  the  Florida  of  the 
first,  second,  and  third ;  in  the  case  of  the  Shenandoah  of  the  second 
and  third  respectively.  The  Tuscaloosa,  a  tender  of  the  Alabama^ 
and  the  Clarence,  Tacony,  and  Archer,  tenders  of  the  Florida,  were 
held  to  be  involved  in  the  lot  of  their  principals.  It  was  held  in 
the  cases  of  the  Georgia,  Sumter,  Nashville,  Tallahassee,  and  Chick- 
amauga  that  Great  Britain  had  not  failed  to  observe  the  three  rules. 
The  cases  of  the  Sallie.  Jeff  Davis,  Music,  Boston,  and  V.  H.  Joy, 
were  excluded  from  consideration  for  want  of  evidence.— "  Foreign 
Relations  of  the  United  States,"  1872,  1873,  "Geneva  Arbitration," 
vol.  iv.,  pp.  51,  53. 

llbid.,  p.  53. 

2  "  Treaties  and  Conventions  of  the  United  States,"  p.  416. 


NEUTRALITY.  335 

servance  of  neutral  obligation  and  duty  would  require 
substantial  compliance  with  their  provisions,  by  any 
neutral  state,  in  time  of  war.  Their  chief  effect  has 
been  to  define  and  make  clear  a  principle  already  ex- 
isting, and  so  generally  sanctioned  by  the  usage  of 
nations  as  to  cause  it  to  be  regarded  as  a  doctrine  of 
International  Law. 

Xot  the  least  important  of  its  effects,  however,  will 
be  found  to  consist  in  the  example  afforded  of  two 
powerful  states  resorting  to  an  amicable  method  of 
terminating  a  dispute  which  had  aroused,  in  both  na- 
tions, a  feeling  dangerously  near  to  hostility ;  and  which 
threatened,  upon  more  than  one  occasion,  to  involve 
them  in  open  war. 

References. — For  the  old  view  of  neutrality  the  student  is  re- 
ferred to  Vattel,  book  iii.,  chap,  vii.,  §§  103-111 ;  Azuni, "  Maritime 
Law,"  vol.  ii.,  chaps,  i.-v.  For  the  views  now  generally  accepted, 
see  Hall,  part  iv.,  chaps,  ii.-iv. ;  Boyd's  "Wheaton,  §§  405-501 ; 
Halleck,  vol.  ii.,  chaps,  xxiv.  and  xxviii. ;  Creasy,  pp.  570-683 ; 
Manning,  book  v.,  chaps,  i.-vi.,  and  viii.-xii. ;  Philliniore,  vol.  iii., 
pp.  225-386;  "Woolsey,  §§  163-192;  Bernard,  "The  Neurtality  of 
England ;"  Nys, "  La  Guerre  Maritime,"  chaps,  i.,  ii.,  and  vi. ;  Glass, 
"  Marine  International  Law,"  pp.  573-603 ;  G.  F.  De  Martens,  vol. 
ii.,  §§  305-314,  and  §§  323-326  ;  Kliiber,  §§  279-287,  and  §§  299-316 ; 
Heflfter,  pp.  269-286 ;  Kusserow, "  Les  Devoirs  d'un  Gouvernernent 
Neutre,"  and  Hautefeuille,  vol.  i.,  pp.  195-407 ;  vol.  ii.,  pp.  1-69, 
289^162 ;  vol.  iii.,  pp.  214-276,  and  432-449.  For  a  discussion  of 
the  Alabama  Case  and  the  Geneva  Arbitration,  see  Bernard, "  Neu- 
trality ot  England ;"  Gushing,  "  Treaty  of  Washington ;"  "  The 
Alabama  Question,"  by  Professor  Bluntschli,  vol.  ii.,  Revue  de 
Droit  International,  pp.  452-485 ;  "  The  Geneva  Arbitration,"  vols. 
i.-iv. ;  "  Foreign  Relations  of  the  United  States,"  1872 ;  Gessner, 
"  Sur  la  Reforme  du  Droit  Maritime  de  la  Guerre,"  in  vol.  viii. 
of  Revue  de  Droit  International,  and  Lorirner,  "  The  Obligations 
of  Neutrals." 


CHAPTER  XII. 

CONTRABAND    OF    WAR. 

1.  THE  principle  of  forbidding,  as  a  matter  of  state 
policy,  the  manufacture  or  sale  of  certain  articles,  or 
even  the  holding  of  them  in  legal  possession,  has  been 
recognized  by  the  municipal  law  of  all  states  since  the 
beginning  of  history.  The  origin  of  the  rule  of  Inter- 
national Law  on  the  subject  of  contraband  of  war, 
however,  is  relatively  recent,  and,  in  its  present  form, 
does  not  antedate  the  seventeenth  century.1 

Origin  of  the  Practice. — The  commercial  cities  of  the 
Mediterranean  had  but  little  interest  in  asserting  such 
a  right  against  each  other,  since  each  of  them  claimed 
exclusive  control  erf  what  it  regarded  as  its  own  field 
of  commerce,  and  was  not  disposed  to  surrender  any 
portion  of  it,  even  in  time  of  war.  Moreover,  a  large 
part  of  their  trade  with  the  East,  especially  that  of 
Venice  and  Genoa,  was  in  articles  which  would  now  be 
regarded  as  contraband  of  war.  It  is,  therefore,  very 


1  So  early  as  the  thirteenth  century  it  had  become  the  usage  for 
powerful  sovereigns  to  forbid  all  trade  with  their  enemies  in  time  of 
war.  Such  an  instance  occurs  in  a  treaty  of  Edward  III.,  of  Eng- 
land, with  the  Flemings,  in  1370.  Francis  I.,  in  1543,  forbade  his 
allies  and  confederates  to  deliver  munitions  of  war  to  his  enemy. 
Grotius  was  the  first  writer  of  standard  authority  to  discuss  the  sub- 
ject. Although  the  transport  of  certain  articles  is  forbidden  in  trea- 
ties of  an  earlier  date,  the  Treaty  of  the  Pyrenees,  in  1C59,  and  that 
of  Utrecht,  of  1713,  seem  to  have  been  most  effective  in  determin- 
ing the  present  rule  on  the  subject  of  contraband  of  war. 


CONTRABAND  OF  WAR.  337 

unlikely  that  they  would  have  advocated,  or  e\en  fa- 
vorably considered,  a  principle,  the  application  of  which 
would  have  seriously  injured,  if  it  did  not  entirely  de- 
stroy, a  most  lucrative  branch  of  their  commerce.  The 
adoption  of  the  modern  rule  was  thus  deferred  until 
the  northern  and  western  European  powers  had  begun 
to  acquire  maritime  importance,  and  to  carry  on  hos- 
tile undertakings  against  each  other  at  sea. 

So  soon  as  interstate  commerce  became  general  it 
was  seen  that  certain  kinds  of  trade,  if  carried  on  dur- 
ing the  existence  of  a  war,  were  calculated  to  injure 
belligerents  to  such  an  extent  as  to  make  it  necessary 
for  them  to  cause,  at  least,  their  temporary  discontinu- 
ance ;  and  to  justify  them,  in  the  exercise  of  the  right 
"of  self-defence,  in  resorting  to  such  measures  of  pre- 
caution as  would  neutralize  their  injurious  effects.  It 
was  not  difficult  to  find  a  remedy,  when  the  trade  com- 
plained of  was  carried  on  by  a  state  in  its  corporate 
capacity,  since  it  constituted  a  violation  of  neutrality, 
and  was  punishable  as  such. 

Where  the  objectionable  commercial  undertakings 
originated  with  individuals,  however,  it  was  less  easy, 
to  provide  a  remedy.  On  land  it  was  soon  found  to  be 
impossible  to  prevent  contraband  trade,  unless  the  bel- 
ligerent himself  controlled  the  neutral  frontier,  or  the 
neutral  state  was  willing  to  resort  to  such  elaborate 
police  measures  as  would  effectively  prevent  the  con- 
veyance of  contraband  articles  across  its  boundaries. 
Its  attempted  regulation  on  land,  therefore,  was  soon 
abandoned.  At  sea,  however,  the  matter  could  be 
more  easily  regulated.  The  ships  of  neutrals  could  be 
searched,  and,  if  contraband  articles  were  found  on 
board,  a  suitable  penalty  could  be  inflicted ;  or  their 
22 


338  OUTLINES  OF  INTERNATIONAL  LAW. 

introduction  into  the  enemy's  country  could  be  pre- 
vented, by  maintaining  opposite  his  coasts  a  naval  force 
of  sufficient  strength  to  make  it  difficult,  or  impossible, 
for  neutral  ships  to  obtain  access  to  his  harbors. 

When  such  regulation  was  first  undertaken,  the  at- 
tempt was  made  to  forbid  all  traffic  with  an  enemy. 
This  claim,  however,  was  soon  abandoned,  and  the 
conveyance  of  contraband  was  regarded  as  a  criminal 
act,  involving  the  persons  engaged  in  it,  as  well  as 
their  property,  in  the  penalties  imposed.  In  this  form 
the  rule  was  recognized  by  Grotius.  The  criminal  feat- 
ure was  soon  abandoned,  so  far  as  it  affected  the  per- 
sonal rights  of  those  concerned,  and  the  penalties  were 
restricted  to  the  contraband  goods  alone. 

2.  Power  of  a  Belligerent  over  Neutral  Commerce 
in  Time  of  War. — The  law  of  nations  permits  a  bel- 
ligerent to  exercise  a  peculiar  jurisdiction  over  neutral 
commerce  in  time, of  war.  This  jurisdiction  is  so  ex- 
tensive as  to  amount  to  an  absolute  prohibition  of  cer- 
tain kinds  of  trade.  It  is  limited,  in  its  extent  and  op- 
erations, only  by  the  zeal  and  energy  which  belligerents 
display  in  its  exercise. 

This  jurisdiction  extends — 

(«.)  To  the  prohibition  of  neutral  trade  with  bellig- 
erents in  certain  articles  susceptible  of  military  use. 
The  articles  so  forbidden  to  be  transported  are  called 
contraband  of  war. 

(£>.)  To  the  prohibition  of  all  trade  with  certain  ports 
or  places,  which  are  closed  to  such  trade  by  an  exer- 
cise of  military  force  known  as  an  investment,  siege,  or 
blockade. 

(c.)  To  make  these  prohibitions  effective,  a  belliger- 
ent is  given  the  right  to  stop,  and  search,  all  neutral  mer- 


CONTRABAND  OF  WAR.  339 

chant  vessels  on  the  high  seas,  in  his  own  territorial 
waters,  or  those  of  his  enemy,  for  the  purpose  of  deter- 
mining the  nationality  of  ships  and  goods,  and  of  as- 
certaining whether  they  contain  contraband  of  war. 
This  is  called  the  Right  of  Search. 

These  rights  pertain  to  belligerent  states  alone. 
They  come  into  existence  at  the  outbreak  of  war,  and 
are  terminated  by  the  treaty  of  peace.  None  of  them 
exist,  or  may  lawfully  be  exercised,  in  time  of  peace ; 
and  the  enforcement  of  any  one  of  them,  during  peace, 
would  be  regarded  as  a  just  cause  of  war  by  the  state 
whose  sovereign  rights  were  injured  by  its  exercise. 

The  Rules  of  Contraband  Affect  chiefly  the  Acts  of 
Individuals. — The  rules  of  International  Law  on  the 
subject  of  contraband  trade  are  directed  chiefly  against 
the  acts  of  individuals.  If  a  neutral  state,  in  its  cor- 
porate capacity,  were  to  engage  in  contraband  trade,  it 
would  be  regarded  as  an  act  of  hostility  by  the  injured 
state,  and  would  result  in  a  declaration  of  war.  An 
individual  engaging  in  such  trade,  does  so  at  the  risk 
of  losing  the  articles  of  merchandise  which  constitute 
his  commercial  venture.  He  does  not  involve  his  gov- 
ernment, however,  in  the  breach  of  neutrality  of  which 
he  is  himself  guilty.  If  the  municipal  law  of  his  own 
state  forbids  its  subjects  to  take  part  in  contraband 
trade,  he  may  be  punished  by  that  government  for  a 
violation  of  its  laws. 

Character  of  Contraband  Trade  in  Point  of  Legal- 
ity.— International  Law  declares  the  acts  of  transport- 
ing contraband  and  breach  of  blockade  to  be  unlawful, 
and  denounces  the  penalty  of  confiscation  upon  the 
goods,  and,  in  some  cases,  upon  the  ships  engaged  in 
such  illicit  trade.  These  rules  of  International  Law 


OUTLINES  OF  INTERNATIONAL  LAW. 

are  enforced  by  the  belligerent  Avho  suffers  by  their 
violation,  and  the  authorized  penalties  are  imposed  by 
his  prize  courts. 

3.  Difficulty  of  the  Attempt  to  Frame  Rules  for 
Determining  what  Articles  are  Contraband  of  War. — 
It  is  difficult  to  lay  down  a  rule  the  application  of 
which  shall,  in  every  case,  determine  whether  a  par- 
ticular article  is,  or  is  not,  contraband  of  war.  The 
attempt  has  frequently  been  made,  but  none  of  the 
rules  suggested  has,  as  yet,  received  that  general  sanc- 
tion which  is  necessary  to  give  it  standing  as  a  rule  of 
International  Law.  "  Grotius,  in  considering  this  sub- 
ject, makes  a  distinction  between  those  things  which 
are  useful  only  for  purposes  of  war,  those  which  are 
not  so,  and  those  which  are  susceptible  of  indiscrimi- 
nate use  in  war  and  peace.  The  first,  he  agrees  with 
all  other  text  writers  in  prohibiting  neutrals  from  car- 
rying to  the  enemy,  as  well  as  in  permitting  the  sec- 
ond to  be  so  carried ;  the  third  class,  such  as  money, 
provisions,  ships'  and  naval  stores,  he  sometimes  pro- 
hibits and  at  others  permits,  according  to  the  existing 
circumstances  of  the  war."  l 

Difficulty  of  Stating  a  Precise  Rule. — The  question 
as  to  what  is  and  what  is  not  contraband  cannot,  as 
yet,  be  answered  with  precision.  No  complete  list  of 
articles  which  are  to  be  deemed  contraband  under  all 


1  Boyd's  Wheaton,  pp.  558,  559,  citing  Grotius;  "  De  Jure  Belli  ct 
Pac.,"  lib.  iii.,  cap.  i.,  §  v,  1,  2,  3.  The  views  of  Bynkershoek  and  Vat- 
tel  agree  in  substance  with  those  of  Grotius.  The  former,  however, 
shows  an  inclination  to  extend  Grotius's  rules  in  the  interest  of  bel- 
ligerents, while  the  latter  contends  for  a  rule  somewhat  more  favor- 
able to  neutrals.  See  Vattel,  bk.  iii.,  chap,  vii.,  §  112, 113;  Bynker 
shock,  "Quest.  Jur.  Pub.,"  lib.  i.,  cap.  10. 


CONTRABAND  OF   WAR. 

circumstances  has  been  drawn  up,  nor  does  it  seem 
likely  that  it  ever  will  be.  That  which  is  contraband 
under  certain  circumstances  may  not  be  so  under  oth- 
ers. The  main  point,  in  case  of  an  article  of  doubtful 
use,  is,  whether  it  was  intended  for,  or  would  probably 
be  applied  to,  military  purposes.  The  release  or  con- 
demnation of  the  goods  is,  in  every  case,  determined 
by  the  decision  of  this  question. 

Question  Determined  by  Prize  Courts. — In  England 
and  America  the  court  before  which  the  goods  are 
brought  will  inquire  into  all  the  circumstances  of 
the  case;  such  as  the  destination  of  the  ship,  the 
purpose  to  which  the  goods  seem  intended  to  be  ap- 
plied, the  character  of  the  war,  and  so  on,  and  will 
condemn  or  release  them  upon  the  evidence.1  If,  how- 
ever, there  are  any  treaty  stipulations  on  the  subject,  or 
if  the  state  before  whose  court  the  goods  are  brought 
has  issued  any  definite  list  of  contraband  goods,  the 
decision  will,  of  course,  be  regulated  accordingly. 
"  The  liability  to  capture"  says  Halleck,  " can  only  be 
determined  by  the  rules  of  International  Law,  as  inter- 
preted and  applied  by  the  tribunals  of  the  belligerent 
state,  to  the  operations  of  whose  cruisers  the  neutral 
merchant  is  exposed." " 

field's  Rule.  —  Mr.  Field,  in  his  proposed  Interna- 
tional Code,  holds  that  "  private  property  of  any  per- 
son whomsoever,  and  public  property  of  a  neutral 
nation,  are  contraband  of  war,  when  consisting  of  arti- 

1  Dana's  Wheaton,  note,  p.  226;    Calvo,  vol.  ii.,  §  1114;  Abdy's 
Kent,  p.  359. 

2  Boyd's  Wheaton,  pp.  575,  576;  Halleck,  chap,  xxiv.,  §  19.     See, 
also,  on  page  576  of  the  former  work,  the  lists  of  contraband  as  de 
termined  by  the  English  prize  courts. 


342  OUTLINES  OF  INTERNATIONAL  LAW. 

cles  manufactured  for,  and  primarily  used  for,  military 
purposes  in  time  of  war,  and  actually  destined  for  the 
use  of  the  hostile  nation  in  war,  but  not  otherwise." ' 

Opinion  of  the  Supreme  Court  of  the  United  States. — 
The  most  recent  authoritative  opinion  upon  the  sub- 
ject, and  the  one  which  more  nearly  expresses  the  ex- 
isting rule  than  any  other,  is  that  laid  down  by  the 
Supreme  Court  of  the  United  States  in  the  case  of  the 
Peterhoff.  The  decision  of  the  court  was  that  "the 
classification  of  goods  as  contraband  or  not  contra- 
band has  much  perplexed  text  writers  and  jurists.  A 
strictly  accurate  and  satisfactory  classification  is,  per- 
haps, impracticable ;  but  that  which  is  best  supported 
by  American  and  English  decisions  may  be  said  to  di- 
vide all  merchandise  into  three  classes :  (1.)  Articles 
manufactured  and  primarily  or  ordinarily  used  for 
military  purposes  in  time  of  war.  (2.)  Articles  which 
may  be,  and*  are,  used  for  purposes  of  war  or  peace, 
according  to  circumstances.  (3.)  Articles  exclusively 
used  for  peaceful  purposes.  Merchandise  of  the  first 
class,  destined  to  a  belligerent  country  or  places  occu- 
pied by  the  army  or  navy  of  a  belligerent,  is  always 
contraband ;  merchandise  of  the  second  class  is  contra- 
band only  when  destined  to  the  military  or  naval  use 
of  a  belligerent ;  while  merchandise  of  the  third  class 
is  not  contraband  at  all,  though  liable  to  seizure  and 
condemnation  for  violation  of  blockade  or  siege." 2 

To  these  may  be  added  the  rule  that  no  articles  of 
merchandise  are  contraband  of  war  so  long  as  they  re- 
main in  neutral  territory,  or  are  found  on  the  high 


1  Field,  "International  Code,"  §  859. 

2  The  Peterhoff,  Wallace,  vol.  v.,  p.  58. 


CONTRABAND  OF  WAR.  343 

seas  "with  a  bona  fide  neutral  destination.  They  ac- 
quire the  character  of  contraband  only  when  they  are 
found,  without  the  territorial  waters  of  a  neutral  state, 
on  board  a  ship  which  is  destined  to  a  hostile  port. 

Application  of  the  Rules.  —  In  the  application  of 
these  rules,  the  first  and  third  give  rise  to  but  little 
difficulty.  Such  discussion  as  has  been  had,  with  re- 
spect to  the  liability  of  merchandise  to  capture  as  con- 
traband of  war,  has  had  to  do  chiefly  with  the  second 
class,  with  reference  to  which  there  is  a  wide  differ- 
ence of  opinion.  This  is  observable,  not  only  in  the 
policy  of  states,  but  in  the  views  of  text  writers. 
Those  states  which,  at  different  periods,  have  enjoyed 
great  maritime  power,  both  in  a  commercial  and  a  mil- 
itary sense,  have  usually  advocated  an  extension  of  the 
list  o^  contraband;  while,  on  the  other  hand,  those 
which  have  never  attained  to  any  considerable  degree 
of  maritime  importance  have  opposed  such  an  exten- 
sion, and  have  contended  for  the  greatest  freedom  of 
neutral  trade.  Of  the  former  class  England  is  the 
most  conspicuous  representative ;  next  in  order  follow 
France  and  the  United  States.  Holland,  when  an  im- 
portant maritime  power,  entertained  a  different  view 
from  that  advocated  by  her  when  her  maritime  impor- 
tance had  been  largely  diminished. 

Again,  articles  which  are  in  dispute  are  differently 
regarded  at  different  times,  and  under  different  cir- 
cumstances of  destination,  as  determined  by  the  states 
which  are  parties  to  a  particular  war.  So,  too,  arti- 
cles w^hich  are  undeniably  contraband  at  a  particular 
epoch  gradually  lose  that  character ;  on  the  other  hand, 
articles  formerly  innocent,  with  the  lapse  of  time  and 
the  march  of  improvement,  acquire  the  character  of 


344  OUTLINES  OF  INTERNATIONAL    LAW. 

contraband.  Parts  of  marine  steam  machinery,  pre- 
vious to  1830,  would  have  escaped  capture.  Plates  of 
iron  or  steel,  of  suitable  size  for  use  as  armor,  would 
have  enjoyed  a  similar  immunity.  At  present  both 
are  everywhere  regarded  as  contraband  of  war.  How- 
ever difficult  it  may  be  to  prepare  a  list  of  contraband 
articles  at  any  particular  epoch,  it  is  certainly  much 
less  difficult  for  a  court  to  determine  whether  a  cer- 
tain article  of  captured  merchandise  is,  or  is  not,  con- 
traband. In  reaching  such  a  determination  the  court 
takes  into  account  the  circumstances  of  capture,  the 
necessities  of  the  state  to  whose  use  it  was  destined,  its 
condition,  origin,  and  ownership.  With  these  data  the 
court  is  usually  able  to  determine,  with  great  accuracy, 
whether  a  particular  article  is,  or  is  not,  contraband  of 
war.1 

1  The  action  of  the  court  in  the  case  of  the  Peterhoff  may  be  cited 
as  an  example.  A  portion  of  the  cargo  of  the  ship  consisted  of 
stoutly-made  shoes  and  cavalry  boots.  The  ostensible  destination 
of  the  cargo  was  Matamoras,  a  Mexican  port.  These  articles  were 
notoriously  not  worn  or  used,  in  Mexico,  by  any  portion  of  the  popu- 
lation; they  were  worn  in  the  United  States,  and  were  especially 
needed  for  the  equipment  of  the  Confederate  armies.  Another  por- 
tion of  the  cargo  was  composed  of  heavy  woollen  blankets,  not  adapt- 
ed to  the  Mexican  market,  and  of  a  kind  entirely  different,  in  pat- 
tern and  weight,  from  those  usually  worn  in  Mexico.  On  the  other 
hand,  they  closely  resembled  those  made  and  sold,  for  military 
use,  in  the  United  States,  and  were  adapted  to  the  colder  climate 
of  that  country.  The  court,  in  both  instances,  properly  inferred 
that  the  goods  were  destined  to  the  military  service  of  the  Confed- 
eracy. In  the  cargo  of  the  Springbok  a  large  quantity  of  gray  cloth 
and  metal  buttons  were  found.  The  cloth  was  a  heavy  woollen  ma- 
terial, altogether  uusuited  to  the  Nassau  market,  or  for  use  in  the 
manufacture  of  clothing  in  that  climate.  On  the  other  hand,  it  was 
of  the  same  color  and  quality  as  that  officially  adopted  for  the  use 
of  the  Confederate  armies.  Some  of  the  buttons  bore  as  a  device 


CONTRABAND  OF  WAR.  345 

Destination  of  Ships  and  Goods  ;  how  Determined. — 
The  destination  of  a  vessel  is  determined  from  its  pa- 
pers. If  the  ultimate  destination  and  all  interme- 
diate ports  of  call  are  neutral,  the  ship  is  said  to  have 
a  neutral  destination.  If  the  port  of  final  destination, 
or  any  intermediate  port  of  call,  be  hostile,  then  her 
destination  is  hostile.  If  the  purpose  of  the  master  to 
visit  an  intermediate  hostile  port  be  contingent  only, 
and  if  he  has  abandoned  his  purpose  in  the  course  of 
the  voyage,  the  burden  of  proof  is  with  him  to  estab- 
lish such  abandonment  of  the  hostile  destination.  In 
this  case  he  will  have  to  overthrow  the  presumption, 
as  to  destination,  which  is  created  by  the  ship's  papers. 

The  destination  of  the  goods  is  usually,  but  not  in- 
variably, determined  from  that  of  the  ship.  If  the 
destination  of  the  ship  be  neutral,  that  of  the  goods  is 
neutral ;  if  it  be  hostile,  that  of  the  goods  is  hostile. 
Until  the  American  civil  war  the  presumption  by 
which  the  destination  of  the  goods  was  deduced  from 
that  of  the  ship  was  generally  regarded  as  conclusive. 
During  the  course  of  that  war,  however,  the  Supreme 


the  letter  C;  others  the  letter  A;  others  the  letter  I;  still  others  the 
letters  C.  S.  N.  These  buttons  were  not  usual  articles  of  commerce 
in  Nassau,  the  ostensible  destination  of  the  ship.  The  Confederate 
army  regulations  prescribed  that  such  buttons  should  be  worn  by, 
and  should  designate  the  uniforms  of,  its  cavalry,  artillery,  and  in- 
fantry. Its  navy  regulations  prescribed  the  use  of  buttons  bearing 
the  letters  C.  S.  N.  Goods  bearing  the  name  of  the  same  makers, 
and  in  some  cases  of  the  same  shippers,  had  been  found  and  con- 
demned in  previous  cargoes  of  contraband.  These  facts  created  a 
presumption,  against  the  articles,  which  the  claimants  did  not  attempt 
to  rebut  by  evidence  of  a  legitimate  neutral  destination. — ThePe- 
terhoff,  "Wallace,  vol.  v.,  p.  58;  The  Springbok,  ibid.,  p.  1.  See, 
also,  Daira's  Wheaton,  p.  632,  note. 


346  OUTLINES  OF  INTERNATIONAL  LAW. 

Court  of  the  United  States  rendered  several  decisions, 
the  effect  of  which  was  to  extend  considerably  the 
rights  of  belligerents  at  the  expense  of  those  of  neu- 
trals. As  the  new  rule  is  likely  to  receive  considera- 
ble support  in  future  wars,  it  is  important  to  under- 
stand its  relation  to  the  old  rule  of  International  Law 
upon  the  same  subject.  The  rule  laid  down  by  the 
court  was  that  the  destination  of  the  goods,  rather  than 
that  of  the  ship,  was  to  be  inquired  into  by  the  court, 
in  determining  the  liability  to  capture.  If  the  result 
of  such  inquiry  showed  that  the  goods  were  destined 
to  the  military  use  of  a  belligerent,  they  were  held  lia- 
ble to  condemnation,  even  though  they  were  ostensi- 
bly destined  to  a  neutral  port.  The  application  of  the 
rule  is  illustrated  by  the  cases  of  the  Springbok  and 
Peterhoff. 

C&se  of  the  Springbok. — The  Springbok  was  a  neu- 
tral ship,  of  English  ownership,  which  sailed  from 
London  in  December,  1862,  having  on  board  a  cargo 
made  up  in  great  part  of  contraband  of  war.  The 
destination  of  the  vessel,  as  indicated  by  her  custom- 
house certificate,  certificate  of  clearance,  and  manifest 
of  cargo  was  Nassau,  N.  P.,  a  British,  and  therefore 
neutral,  port.  On  February  3,  1863,  she  was  captured 
by  a  public  armed  vessel  of  the  United  States,  on  the 
high  seas,  about  one  hundred  and  fifty  miles  east  of 
her  port  of  destination.  She  was  conveyed  to  New 
York  as  a  prize,  and  ship  and  cargo  were  there  con- 
demned by  the  United  States  District  Court,  a  tribu- 
nal having  original  jurisdiction  in  the  case.  An  ap- 
peal was  taken  to  the  Supreme  Court,  where  the  decree 
was  reversed  as  to  the  ship,  but  affirmed  as  to  the  cargo. 
The  decision  of  the  court  with  regard  to  the  ship  was, 


CONTRABAND  OF  WAR.  34.7 

that  when  "  the  papers  of  a  vessel  sailing  under  a  char- 
ter party  are  all  genuine  and  regular,  and  show  a  voy- 
age between  ports  neutral  within  the  meaning  of  In- 
ternational Law,  and  when  the  aspects  of  the  case  gen- 
erally are,  as  respects  the  vessel,  otherwise  fair,  the 
vessel  will  not  be  condemned  because  the  neutral  port 
to  which  it  is  sailing  has  been  constantly  and  notori- 
ously used  as  a  port  of  call  and  transshipment  by  per- 
sons engaged  in  the  systematic  violation  of  blockade, 
and  in  the  conveyance  of  contraband  of  war,  and  was 
meant  by  the  owners  of  the  cargo  carried  on  this  ship 
to  be  so  used  in  regard  to  it." l  The  Springbok  was 
held  to  come  Avithin  the  rule.  "  Her  papers  were  reg- 
ular, and  they  all  showed  that  the  voyage  in  w^hich 
she  was  captured  was  from  London  to  Nassau,  both 
neutral  ports  within  the  definition  of  neutrality  fur- 
nished by  International  Law.  The  papers,  too,  were 
all  genuine,  and  there  was  no  concealment  of  any  of 
them,  and  no  spoliation.  Her  owners  were  neutral, 
and  do  not  appear  to  have  had  any  interest  in  the  car- 
go ;  and  there  is  no  sufficient  proof  that  they  had  any 
knowledge  of  its  alleged  unlawful  destination." 3 

The  case  of  the  cargo  was  quite  different.  The  cargo 
of  the  ship  consisted  of  over  two  thousand  packages. 
Of  these  the  bills  of  lading  disclosed  the  contents  of 
less  than  one  third,  and  concealed  the  contents  of  over 
two  thirds,  of  the  entire  cargo.  The  manifest  and 
bills  of  lading  named  no  consignee,  but  described  the 
cargo  as  deliverable  to  order.  The  real  owners  of  the 
cargo  were  found  to  be  certain  firms  in  London,  all 
of  whom  had  been  the  owners  of  similar  packages  of 

1  The  Springbok,  Wallace,  vol.  v.,  p.  1.  *  Ibid. 


348  OUTLINES  OF  INTERNATIONAL  LAW. 

merchandise  which  had  been  captured  on  a  previous 
occasion,  and  condemned  as  contraband.1  The  court 
inferred  from  these  facts  the  intention  of  concealing 
from  the  scrutiny  of  American  cruisers  the  contraband 
character  of  a  considerable  part  of  the  cargo.  The 
motive  of  such  concealment  being  "the  apprehension 
of  the  claimants  that  the  disclosure  of  their  names,  as 
owners,  would  lead  to  the  seizure  of  the  ship  in  order 
to  the  condemnation  of  the  cargo." 

The  concealments  above  mentioned  were  not  of 
themselves  regarded  by  the  court  as-  sufficient  to  war- 
rant the  condemnation  of  the  cargo.  "  If  the  real  in- 
tention of  the  owners  of  the  cargo  was  that  the  cargo 
should  be  unloaded  at  Nassau,  and  incorporated  by 
real  sale  into  the  common  stock  of  that  island,"  the 
cargo  should  have  been  "  restored,  notwithstanding  the 
misconduct  of  concealment.  What,  then,  was  the  real 
intention?"  This  was  inferred  by  the  court,  m  part 
from  the  ship's  papers,  and  in  part  from  the  character 
of  the  cargo.  The  manifest  and  bills  of  lading  showed 
that  the  consignment  was  to  order.  This  was  regard- 
ed by  the  court  as  a  negation  that  any  sale  was  made, 
or  intended  to  be  made,  at  Nassau.  The  final  destina- 
tion of  the  cargo,  therefore,  was  not  Nassau,  but  some 
ulterior  port,  and  must  be  inferred  from  the  character 
of  the  cargo.  A  small  part  of  this  cargo  consisted  of 
articles  which  were  contraband  by  the  narrowest  defi- 
nition of  the  term.  A  considerable  part  consisted  of 
articles  useful  and  necessary  in  war — such  as  army 
cloth,  blankets,  boots  and  shoes — and  therefore  con- 


1  The  Gertrude,  " Blatchf ord's  Prize  Cases"  (U.  S.  Dist.  Court), 
.  874;  The  Stephen  Hart,  ibid.,  p.  387. 


CONTRABAND  OF  WAR.  349 

traband  within  the  construction  of  English  and  Amer- 
ican prize  courts.  These  being  contraband,  the  resi- 
due of  the  cargo,  belonging  to  the  same  owners,  was 
included  in  the  decree  of  condemnation.1 

Case  of  the  Peterhoff. — The  case  of  the  Peterhoff,  in 
some  respects,  resembles  that  of  the  Springbok.  The 
Peterhoff  was  a  steamer  which  sailed  from  London 
with  proper  documents  and  ship's  papers,  indicating 
her  destination  to  be  Matamoras,  Mexico.  The  Rio 
Grande,  for  a  portion  of  its  course,  separates  the 
territory  of  the  United  States  from  that  of  Mexico. 
The  city  of  Matamoras  is  situated  on  the  lower  waters 
of  the  river,  about  forty  miles  from  its  mouth,  and  di- 
rectly opposite  the  city  of  Brownsville,  in  the  United 
States,  The  Peterhoff  never  reached  her  destination, 
but  was"  captured,  near  the  Island  of  St.  Thomas,  by 
the  United  States  steamer  Vanderbilt,  on  suspicion 
that  her  destination  was  the  blockaded  coast  of  the 
states  in  rebellion,  and  that  her  cargo  consisted  in  part 
of  contraband  of  war.  She  was  taken  to  ]S"ew  York, 
where  ship  and  cargo  were  condemned  as  prize.  An 
appeal  was  taken  to  the  Supreme  Court  by  claimants 
interested  in  the  vessel  and  a  portion  of  the  cargo. 

The  court,  in  reaching  a  decision,  found  it  necessary 
to  pass  upon  the  question  of  the  right  of  a  belligerent 
to  blockade  a  boundary  river,  in  order  to  determine 
whether  the  ship  was  liable  for  breach  of  blockade  or 
for  carrying  contraband  of  war. 

Upon  this  point  the  ruling  was,  that  when  a  naviga- 
ble river  separates  two  sovereign  states,  neither  bellig- 
erent, in  the  exercise  of  his  right  of  blockade,  can  in- 

'•  The  Springbok,  Wallace,  vol.  v.,  p.  1. 


350  OUTLINES  OF  INTERNATIONAL  LAW. 

terrupt  commerce  with  the  other  state,  if  neutral,  by 
preventing  access  to  any  ports  of  such  neutral  state  as 
are  situated  upon  the  boundary  river  at  any  point  of 
its  course.  As  the  ~bona  fide  destination  of  the  ship, 
as  indicated  by  its  papers,  was  Matamoras,  a  neutral 
port,  it  was  therefore  decided  that  the  ship  was  not, 
and,  under  the  circumstances  could  not  be,  liable  to 
condemnation  for  breach  of  blockade. 

As  to  the  cargo,  the  decision  was  that  the  destina- 
tion of  such  part  of  it  as  was  contraband  of  war,  ac- 
cording to  the  rules  already  cited,1  was  not  the  neutral 
port  of  Matamoras,  and  "  that  these  articles,  at  least, 
were  destined  for  the  use  of  the  rebel  forces  then  oc- 
cupying Brownsville  and  other  places  in  the  vicinity. 
Contraband  merchandise  is  subject  to  a  different  rule 
in  respect  to  ulterior  destination  from  that  which  ap- 
plies*, to  merchandise  not  contraband.  The  latter  is 
liable  to  capture  only  when  a  violation  of  blockade  is 
intended ;  the  former  when  destined  to  a  hostile  coun- 
try, or  to  the  actual  military  or  naval  use  of  the  ene- 
my, whether  blockaded  or  not.  The  trade  of  neutrals 
with  belligerents,  in  articles  not  contraband,  is  abso- 
lutely free,  except  interrupted  by  a  blockade ;  the  con- 
veyance by  neutrals  to  belligerents  of  contraband  arti- 
cles is  always  unlawful,  and  such  articles  may  always 
be  seized  during  transit  by  sea.  Hence,  while  articles, 
not  contraband,  might  be  sent  to  Matamoras  and  be- 
yond to  the  rebel  region,  where  the  communication 
was  not  interrupted  by  blockade,  articles  of  a  contra- 
band character,  destined  in  fact  to  a  state  in  rebellion, 

1  Lawrence's  Wheaton,  pp.  772-776,  note;  The  Commercen,  Whea- 
ton,  vol.  i.,  p.  382;  Dana's  Wheaton,  p.  629,  note;  Parsons,  "Mari- 
time Law,"  pp.  93,  94. 


CONTRABAND  OF  WAR.  351 

or  for  the  use  of  the  rebel  military  forces,  were  liable 
to  capture  though  primarily  destined  for  Matamoras." ' 
The  rule  that  the  ownership  of  a  portion  of  the  contra- 
band cargo  rendered  articles  not  contraband,  but  be- 
longing to  the  same  owners,  liable  to  condemnation, 
was  enforced  as  in  the  case  of  the  Springbok.2 

4.  The  Doctrine  of  Continuous  Voyages. — In  both  of 
these  cases  the  doctrine  of  continuous  voyages,  orig- 
inated by  the  English  prize  courts  at  the  beginning  of 
this  century,  was  recognized  by  the  court  in  reaching  a 
decree  of  condemnation.  By  this  doctrine  the  ulti- 
mate destination  of  a  cargo  is  held  to  determine  its 
liability  to  capture.  If  such  destination  is  a  neutral 
port,  and  if  the  cargo  is  intended  to  be  sold  there,  and 
taken  up  as  a  part  of  the  general  stock  in  trade,  the 
cargo  is  not  liable  to  condemnation.  If,  however,  a 
neutral  port  is  made  a  new  base  of  operations,  and  the 
goods  are  intended  to  be  finally  delivered  at  a  block- 
aded port ;  or  if  they  are  contraband  of  war,  and  are 
destined  to  the  ultimate  military  use  of  a  belligerent, 
then  the  alleged  neutral  destination  will  not  avail. 
The  principle  of  continuous  voyages  is  thus  seen  to 
have  been  extended  by  the  Supreme  Court  in  its  appli- 
cation to  the  cases  of  the  Springbok  and  Peterhoff, 
although  the  fundamental  principle  involved,  as  an- 
nounced by  Lord  Stowell  in  his  original  decision,  has 
undergone  no  material  change.3  The  later  decision 

1  Wallace,  vol.  v.,  p.  35. 

s  The  English  cases  of  the  Stert,  Robinson,  "Admiralty  Reports," 
vol.  iv.,  p.  65,  and  the  Jonge  Pieter,  ibid.,  vol.  Hi.,  p.  297,  were  cited 
by  the  court  as  precedents  applicable  to  the  case. 

8  For  a  full  account  of  the  decision  of  Lord  Stowell  upon  the 
subject  of  continuous  voyages,  see  the  Polly,  Robinson,  "Admiralty 


352  OUTLINES  OF  INTERNATIONAL  LAW. 

regards  the  goods  if  contraband,  and  destined  to  an 
enemy's  use,  or  to  a  blockaded  port,  as  still  liable  to 
capture,  even  Avhen  they  were  to  have  been  discharged 
at  a  neutral  port,  with  a  view  to  reshipment  to  the 
belligerent  destination.1 

Difference  between  the  Old  and  New  Rules. — The 
rule  thus  laid  down  by  the  Supreme  Court  of  the  United 
States  is  undoubtedly  at  variance  with  the  provisions 
of  International  Law  on  the  same  subject,  as  they  were 
accepted  and  understood  at  the  outbreak  of  the  civil 
war.  Neither  has  the  new  rule  received  that  general 
recognition  which  it  must  receive  to  entitle  it  to  con- 
sideration as  a  rule  of  International  Law.  The  devel- 
opment of  steam  navigation,  however,  has  been  such 
as  greatly  to  facilitate  the  operations  of  blockade-run- 
ning and  carrying  of  contraband.  So  important  has 
this*  development  been,  that  a  belligerent  would  now 
suffer  great  injury  were  he  to  adhere  to  the  old  rule 
on  the  subject,  which  received  international  sanction 
at  a  time  when  maritime  commerce  was  carried  on  in 
sailing  vessels,  and  before  the  application  of  steam  to 
purposes  of  navigation  had  become  an  accepted  fact. 
Some  modification  of  the  old  rule  is,  therefore,  both 

Reports,"  vol.  ii.,  p.  369,  and  the  William,  ibid.,  vol.  v.,  p.  395.  See, 
also,  Phillimore,  vol.  iii.,  p.  394;  and  Boyd's  Wheaton,  pp.  589-592. 
1  In  the  case  of  the  Springbok  the  British  government  was  ap- 
plied to  by  the  owners  of  the  contraband  cargo  to  demand  restitu- 
tion of  the  goods  from  the  American  government,  or  compensation 
for  their  seizure.  The  case  was  referred  to  the  law  officers  of  the 
crown,  and  their  opinion  was  that  the  seizure  was  illegal.  The  case 
was  referred  to  a  mixed  commission,  and  the  claim  was  rejected, 
but  no  reason  was  given  by  the  commission  for  its  decision.  See 
Creasy,  pp.  619,  620,  for  a  full  and  able  discussion  of  the  subject. 
See,  also,  Field's  "International  Code,"  §  859. 


CONTRABAND  OF  WAR.  353 

just  and  necessary,  in  order  to  place  a  belligerent  in  as 
good  a  situation  as  that  which  he  formerly  occupied. 
What  that  modification  is  to  be  can  only  be  deduced 
from  experience,  of  which  a  sufficient  amount  has  not 
yet  been  acquired  to  justify  such  a  deduction,  or  to 
warrant  the  statement  of  a  modified  rule.  This  much 
only  is  clear.  A  powerful  belligerent  will  not,  in  the 
future,  allow  himself  to  be  injured  by  articles  of  con- 
traband which  the  enemy  actually  receives  from  ships 
having  an  ostensibly  neutral  destination ;  nor,  on  the 
other  hand,  will  a  powerful  neutral  allow  the  property 
of  his  subjects  to  be  seized  on  the  high  seas  when  those 
goods,  although  partaking  of  the  character  of  contra- 
band, have  a  lona  fide  neutral  destination.  In  the 
cases  above  cited  the  ultimate  destination  of  the  goods 
was  so  clearly  hostile  as  to  make  it  difficult,  if  not  im- 
possible, for  the  British  government  to  maintain  the 
position  that  the  goods  of  its  subjects  had  been  seized 
in  the  prosecution  of  an  entirely  innocent  voyage,  and 
were  so  entitled  to  the  protection  which  that  govern- 
ment invariably  accords  to  its  subjects  when  their 
rights  have  been  wrongfully  invaded  by  a  foreign 
state. 

5.  Penalty  for  Contraband  Trade. — The  conveyance 
of  contraband  of  war  is  an  offence  against  the  law  pf 
nations.  Over  this  offence  the  prize  courts  of  a  bel- 
ligerent are  given  jurisdiction,  and,  in  the  decision  of 
prize  cases,  these  courts  apply  the  rules,  and  impose 
the  penalties,  which  are  sanctioned  by  International 
Law. 

The  invariable  penalty  imposed  for  the  carriage  of 
contraband  is  that  of  forfeiture.  In  ordinary  cases 
this  penalty  is  applied  to  the  contraband  goods  alone, 
23 


354:  OUTLINES  OF  INTERNATIONAL  LAW. 

and  to  the  freight  due  upon  them  to  the  neutral  carrier. 
The  question  as  to  whether  it  is  to  be  extended  to  oth- 
er parts  of  the  cargo,  or  to  the  ship,  is  determined  by 
the  knowledge  and  intention  of  their  owners,  as  pre- 
sumed from  the  circumstances  of  the  case.  The  an- 
cient penalty  for  engaging  in  contraband  trade  involved 
the  forfeiture  of  the  ship  and  the  non-contraband  cargo. 
This  rule  has  been  relaxed,  in  modern  times,  in  cases 
where  such  contraband  articles  make  up  a  minor  por- 
tion of  the  cargo,  thus  creating  a  presumption  of  inno- 
cence in  favor  of  the  carrier.  In  other  cases  the  old 
presumption  remains,  and  the  burden  of  proof  lies  upon 
the  owner  of  the  ship  to  establish  his  innocence.  Such 
presumption  exists,  as  to  the  ship— 

(#.)  When  the  owner  of  the  ship  owns  any  part  of 
the  contraband  cargo.  If  a  part  owner  of  the  vessel 
be  shown  to  have  an  interest  in  the  contraband  cargo 
his  share  only  is  forfeited.1 

(b.)  "When  the  greater  part  of  the  cargo  is  contra- 
band. In  this  case  the  presumption  is  that  the  owner 
of  the  ship  knew  of  the  use  to  which  his  property  was 
put,  and  consented  to  such  illegal  use.a 

(c.)  When  deceit  is  attempted  by  the  use  of  false 
papers,  or  when  a  false  destination  is  claimed.3 

(<#.)  When  contraband  is  carried  in  violation  of  treaty 
stipulation.4 

The  innocent  cargo  is  exempt  from  forfeiture,  unless 
its  ownership  is  t-he  same  as  that  of  the  whole  or  a 
part  of  the  contraband. 

Duration  of  Penalty.  —  The  offence  of  carrying 
contraband  begins  so  soon  as  the  ship  passes  into  the 


Boyd's  Wheaton,  p.  584.  2  Ibid.  3Ibid. 


CONTRABAND  OF  WAR.  355 

high  seas  from  the  territorial  waters  of  the  neutral 
state.  It  is  complete,  and  the  liability  to  penalty  no 
longer  exists,  when  the  articles  have  been  delivered  at 
their  hostile  destination.  A  ship  cannot  be  captured 
on  its  return  voyage,  since  there  is  no  offence  against 
International  Law  in  carrying  a  cargo  of  any  charac- 
ter from  a  belligerent  to  a  neutral  destination.1 

Release  of  Neutral  Ship  upon  the  Surrender  of 
Contraband  Cargo. — In  a  few  instances  neutral  ships 
have  been  released,  and  allowed  to  proceed  to  their 
destination,  on  condition  that  the  contraband  articles 
be  surrendered  to  the  captor.  Although  this  practice 
has  been  recognized  in  a  limited  number  of  treaties,  it 
is  entirely  opposed  to  the  rule  of  law  upon  the  subject, 
and  has  never  received,  nor  is  it  likely  to  receive,  gen- 
eral sanction.  The  surrendered  articles  must  be  car- 
ried before  a  prize  court  in  order  to  secure  a  decree  of 
condemnation,  upon  which  alone  a  valid  title  can  be 
based.  The  court,  in  the  absence  of  the  ship's  papers, 
frequently  finds  itself  unable  to  determine,  from  lack  of 
evidence,  whether  the  articles  are,  or  are  not,  contraband 
of  war ;  and,  in  the  absence  of  the  owner,  the  master  of 
the  ship  has  no  legal  power  to  surrender  any  portion 
of  his  cargo,  except  in  accordance  with  the  la\vs  of  war. 

1  It  was  held  by  Sir  William  Scott,  in  at  least  two  cases,  that  the 
duration  of  the  penalty  was  prolonged  to  the  end  of  the  return  voy- 
age when  false  papers  had  been  used  to  evade  seizure  on  the  outward 
voyage.  This  view  is  properly  questioned  by  Wheaton,  on  the  ground 
that  there  must  be  a  delictum  at  the  moment  of  seizure.  To  subject 
the  property  to  confiscation,  while  the  offence  no  longer  continues, 
would  be  to  extend  it  indefinitely,  not  only  to  the  return  voyage, 
but  to  all  future  cargoes  of  the  vessel,  which  would  thus  never  be 
purified  from  the  contagion  communicated  by  the  contraband  arti- 
cles.— Boyd's  Wheaton,  pp.  584,  585. 


356  OUTLINES  OF  INTERNATIONAL  LAW. 

6.  Neutral  Conveyance  of  Enemy's  Troops  and  De- 
spatches.— It  has  been  seen  that  the  conveyance  of 
contraband  of  war  is  an  offence  against  the  law  of  na- 
tions. Over  this  oifence  belligerents  are  given  juris- 
diction, and  the  penalties  sanctioned  are  imposed  by 
the  prize  courts  of  the  belligerent  parties  to  the  war. 
A  neutral  individual  who  carries  contraband  to  either 
belligerent  assists  that  belligerent  to  a  greater  or  less 
extent,  depending  upon  the  character  and  quantity  of 
the  goods  transported.  Troops  and  despatches  are, 
therefore,  the  most  noxious  form  of  contraband  of 
war,  because,  in  point  of  directness  and  importance, 
the  service  rendered  by  the  conveyance  of  either  is 
much  greater  than  that  afforded  by  the  conveyance  of 
ordinary  contraband.  The  assistance  rendered  to  an 
enemy  by  a  single  cargo  of  munitions  of  war,  though 
direct  and  material,  is,  at  best,  limited.  The  mischief 
that  may  result  from  the  carriage  of  a  single  despatch, 
or  general  officer,  may  have  a  decisive  effect  upon  the 
issue  of  a  war.  The  penalty  for  engaging  in  contra- 
band trade  usually  extends  to  a  forfeiture  of  the  con- 
traband articles.  The  question  as  to  the  ship  and 
non-contraband  cargo  is  made  to  depend  on  the  guilty 
knowledge  of  their  owners.  If  they  are  forfeited  it  is 
because  a  presumption  of  such  knowledge  is  created 
by  the  fact  of  ownership.  "When  troops  or  despatches 
are  carried  to  a  hostile  destination  the  presumption  of 
guilt,  created  by  such  carriage,  is  so  strong  as  to  be  re- 
garded as  conclusive;  and  the  ship  is  invariably  con- 
demned as  the  instrument  with  which  the  offence 
against  International  Law  has  been  committed. 

Definition  of  Troops  and  Despatches  in  this  Connec- 
tion.— The  term  troops  includes  not  only  military  per- 


CONTRABAND  OF  WAR.  357 

sons,  but  all  individuals  having  an  official  character  in 
the  service  of  a  belligerent,  whose  assistance  is  mate- 
rial in  the  prosecution  of  the  war,  or  whose  detention 
is  calculated  to  impair  his  military  efficiency. 

Despatches  are  official  communications  between  offi- 
cial persons,  in  the  military  or  civil  service  of  a  state, 
upon  matters  connected  with  the  public  business.  All 
other  communications,  of  whatever  character,  are  un- 
official, and  therefore  not  subject  to  classification  as 
despatches. 

The  Destination  Important. — In  the  conveyance  of 
troops  and  despatches  the  destination  of  the  vessel  is 
of  importance  as  creating  a  presumption  of  guilt  or  in- 
nocence. If  the  destination  is  hostile,  the  guilt  of  the 
carrier  is  presumed ;  if  such  destination  be  neutral,  the 
contrary  is  the  case,  and  the  burden  of  proof  lies  on  the 
captor  to"  establish  guilty  knowledge.  If  the  ports  of 
origin  and  destination  are  both  hostile,  an  extreme  case 
of  guilt  exists ;  if  such  ports  are  both  neutral,  it  is  dif- 
ficult to  see  how  guilty  knowledge  can  be  presumed  on 
the  part  of  the  neutral  carrier.  As  in  every  other  case 
of  maritime  capture,  questions  as  to  the  character  of 
particular  despatches,  and  the  consequent  liability  of 
the  carrier,  are  determined  by  the  proper  prize  courts. 

Cases  of  the  Friendship  and  Greta. — Several  con- 
demnations of  vessels  for  carrying  troops  were  made 
by  the  English  prize  courts  during  the  period  between 
1803  and  1815.  A  leading  case  was  that  of  the  Friend- 
ship, a  vessel  hired  to  bring  to  France  eighty-four  ship- 
wrecked officers  and  sailors.  It  was  confiscated  because 
it  appeared  in  the  evidence  that  it  was  hired  as  a  trans- 
port, was  not  permitted  to  take  cargo,  and  was  being 
used,  as  a  transport,  to  convey  these  persons,  as  a  part 


358  OUTLINES  OF  INTERNATIONAL  LAW. 

of  the  French  army,  to  a  belligerent  destination.  In 
another  case  a  vessel  sailed  from  Rotterdam  to  Lisbon, 
where  it  was  ostensibly  chartered,  by  a  Portuguese  sub- 
ject, to  carry  cargoes  or  passengers  to  Macao ;  no  cargo 
was  shipped,  but,  after  some  time  spent  in  fitting  it  for 
passengers  with  unusual  care,  three  Dutch  officers  of 
rank  embarked  in  it,  not  for  Macao,  but  for  Batavia. 
Lord  Stowell,  on  the  facts  in  the  case,  inferred  that  a 
contract  had  been  made  with  the  Dutch  government 
before  the  vessel  left  Rotterdam,  and  condemned  it.1 
The  Greta  was  a  neutral  vessel,  employed  in  carrying 
certain  shipwrecked  Russian  soldiers  from  a  port  of 
Japan  to  a  destination  in  Asiatic  Russia.  She  was 
captured  by  an  English  cruiser,  and  condemned.  Had 
she  been  captured  in  the  act  of  conveying  them  from 
the  place  of  the  shipwreck,  to  any  destination,  her  act, 
being  one  of  humanity,  would  have  been  innocent.  In 
the  particular  voyage  upon  which  she  was  engaged, 
however,  she  was  acting  in  the  capacity  of  a  transport. 

Presumption  in  the  Case  of  Hostile  Despatches. — 
In  the  case  of  hostile  despatches,  the  mere  presence  of 
such  documents  on  board  suffices  to  create  a  presump- 
tion of  guilt  on  the  part  of  the  neutral  carrier.  So 
severely  is  this  rule  applied,  that  a  neutral  may  not 
even  plead  compulsion  as  an  excuse,  it  being  held  in 
such  a  case  that  his  remedy,  in  the  event  of  being 
compelled  to  render  such  service  to  a  belligerent,  is 
through  his  own  government  in  the  diplomatic  way. 

Despatches  of  a  Belligerent  to  its  Ministers  and  Con- 
suls in  Neutral  States. — The  despatches  of  a  public 

1  Hall,  p.  594;  The  Friendship,  Rohinson,  "Admiralty  Reports," 
vol.  vi.,  p.  432;  The  Orozernbo,  ibid.,  p.  433. 


CONTRABAND  OF  WAR.  359 

minister  or  consul,  representing  a  belligerent  in  a  neu- 
tral state,  are  an  exception  to  this  rule.  "  They  are 
despatches  from  persons  who  are,  in  a  peculiar  manner, 
the  favorite  object  of  the  protection  of  the  law  of  na- 
tions, residing  in  a  neutral  country  for  the  purpose  of 
preserving  the  relations  of  amity  between  that  state 
and  their  own  government.  On  this  ground  a  very 
material  distinction  arises  with  respect  to  the  right  of 
furnishing  the  conveyance.  The  neutral  country  has 
a  right  to  preserve  its  relations  with  the  enemy,  and 
you  are  not  at  liberty  to  conclude  that  any  communi- 
cation between  them  can  partake,  in  any  degree,  of  the 
nature  of  hostility  against  you." l 

Conveyance  of  Mails  in  the  Ordinary  Course  of 
Business. — The  question  of  conveying  hostile  despatch- 
es must  not  be  confused  with  the  carriage  of  mails  by 
a  neutral,  in  accordance  with  contracts  or  agreements, 
and  in  the  way  of  ordinary  business.  Such  contracts 
not  only  have  the  sanction  of  municipal  law,  but  are 
not  infrequently  made  the  subjects  of  treaty  stipula- 
tion. It  is  not  easy  to  see  how  the  master  of  a  vessel 
can  acquire  any  duties  or  responsibilities  in  connection 
with  them,  save  for  their  speedy  and  safe  deli  very.  A 
neutral  master  who  aids  a  belligerent  by  carrying  his 
despatches,  with  full  knowledge  of  their  contents,  or 
under  circumstances  which  create  a  presumption  of 
such  knowledge  on  his  part,  is  justly  held  to  the  fullest 
responsibility  for  his  act.  The  conveyance  of  mails, 
however,  in  the  usual  course  of  business,  can  give  rise 
to  no  such  presumption.  The  packages  are  delivered 


1  The  Caroline,  Kobinson,  "Admiralty  Reports,"  vol.  vi.,  p.  461 
cited  by  Wheat  on,  p.  581. 


360  OUTLINES  OF  INTERNATIONAL  LAW. 

to  him  either  locked  or  sealed.  He  has,  and  can  have, 
no  knowledge  of  their  contents,  much  less  of  the  char- 
acter of  the  letters  enclosed  in  them.  Responsibility 
for  them  on  the  part  of  the  carrier,  therefore,  cannot 
exist,'  for  no  knowledge  or  intention  can  be  presumed. 
The  modern  tendency  is  to  facilitate  mail  communica- 
tion in  every  way  possible,  to  remove  every  obstacle 
to  their  prompt  and  safe  delivery,  and  to  guarantee, 
beyond  question,  the  sacredness  of  private  correspond- 
ence.1 

Case  of  the  Trent. — The  Trent  was  one  of  a  line  of 
mail  steamers  employed  in  general  mail  and  trans- 
portation service  between  Havana  and  London.  On 
November  Y,  1861,  she  sailed  from  Havana,  having  on 
board,  among  other  passengers,  four  persons,  Messrs. 
Mason  and  Slidell,  and  their  secretaries,  who  were  en 
route  to  Europe,  where  they  were  to  be  employed  as 
diplomatic  agents  of  the  Confederate  States.  On  No- 
vember 8  the  Trent  was  stopped  on  the  high  seas  by 
the  San  Jacinto,  a  public  armed  vessel  of  the  United 
States,  whose  commander,  Captain  Wilkes,  sent  on 
board  a  search  party  composed  of  an  officer  and  a  de- 
tachment of  marines.  The  two  envoys,  with  their 
secretaries,  were  seized  by  the  search  party,  taken  on 
board  the  San  Jacinto,  and  conveyed  to  New  York. 
The  Trent  was  then  released  and  alloAved  to  proceed 
on  her  way. 

So  soon  as  the  facts  were  brought  to  the  attention 
of  the  British  government,  a  demand  was  made  upon 

1  The  rule  of  International  Law,  however,  still  authorizes  the  ex- 
amination of  mails  found  on  board  vessels  which  have  been  regu- 
larly captured  ;  Field,  "International  Code,"  §862  ;  Lushington, 
"Naval  Prize  Law,"  introduction,  p.  xiL 


CONTRABAND  OF  WAR. 

the  United  States  for  the  restoration  of  the  arrested 
persons.  Their  diplomatic  character  was  not  drawn 
in  question,  their  surrender  being  demanded  on  the 
ground  that  they  had  been  forcibly  taken  from  a  neu- 
tral vessel  on  the  high  seas,  and  in  the  prosecution  of 
a  voyage  from  one  neutral  port  to  another.  They 
were  surrendered  by  the  United  States  upon  the  ground 
of  the  irregularity  of  their  seizure. 

Conclusions. — The  case  of  the  Trent  illustrates  cer- 
tain principles  of  the  law  of  maritime  capture. 

(«.)  The  Trent,  being  a  neutral  vessel,  was  liable  to 
search  upon  the  high  seas,  by  any  properly  documented 
armed  vessel  in  the  service  of  a  belligerent  power. 

(J.)  If  the  commander  of  the  searching  vessel  had 
found  enemy  despatches  on  board,  or  had  reason  to 
believe  that  such  despatches  were  being  carried,  it  was 
his  duty"  to  seize  the  vessel  and  send  her  to  a  port  of 
the  United  States,  with  a  view  to  a  judicial  determina- 
tion of  the  question  involved. 

(c.)  In  the  exercise  of  his  belligerent  right  it  was  his 
duty  to  capture  the  vessel ;  or  release  her,  after  having 
executed  the  right  of  search.  No  intermediate  course 
was  possible.  His  action,  therefore,  in  seizing  certain 
persons,  under  any  pretext,  was  without  warrant  of  law. 

(Y7.)  The  destination  of  the  Trent  wTas  neutral,  a  fact 
which  should  have  created  a  strong  presumption  of 
innocence.  The  fact  that  her  port  of  origin  was  also 
neutral  should  have  made  the  presumption  conclusive 
as  to  innocence.1 

1  For  able  discussions  of  this  case,  see  Dana's  Wheaton,  p.  648, 
note;  Bernard,  "Neutrality  of  Great  Britain,"  pp.  157,  225;  Nys, 
"La  Guerre  Maritime,"  p.  46.  The  case  of  Henry  Laurens  is,  in 
many  respects,  the  same  as  that  of  the  Trent.  Mr.  Laurens  was 


362  OUTLINES  OF  INTERNATIONAL  LAW. 

7.  Occasional  Contraband.  —  During  the  disturbed 
period  intervening  between  the  outbreak  of  the  French 
Revolution  in  1789,  and  the  Treaty  of  Yienna  in  1815, 
the  old  usages  of  International  Law  were  subjected  to 
a  severe  and  constant  strain.  This  was  due,  in  part,  to 
the  frequency  and  magnitude  of  the  wars  that  were 
carried  on,  in  which,  at  times,  nearly  all  of  the  Euro- 
pean states  were  participants;  and,  in  part,  to  the 
great  disparity  that  existed  in  the  relative  naval  and 
military  power  of  the  principal  belligerents.  During 
the  greater  part  of  this  period  the  military  supremacy 
of  France  was  successfully  maintained  against  every 
effort  to  overthrow  it  by  operations  on  land ;  on  the 
other  hand,  the  supremacy  of  England  at  sea  was  so 
firmly  established  as  to  secure  even  more  general  rec- 
ognition. As  these  powers  were  generally  opposed  to 
each  other,  it  is  not  remarkable  that  they  should  have 
attempted  to  interpret  the  rules  of  wrar,  each  in  a  sense 
favorable  to  its  own  interests;  and,  as  the  one  was 
strong  where  the  other  was  weak,  neither  was  able  to 

sent,  in  1780,  upon  a  mission  to  Holland,  with  the  authority  of  Con- 
gress to  secure  the  recognition  of  the  independence  of  the  colonies, 
and  to  obtain  a  loan  of  money.  He  left  Charleston  in  1780,  and 
reached  Martinique,  in  the  West  Indies,  in  safety.  From  there  he 
embarked  in  a  Dutch  packet,  the  Mercury,  for  Holland.  He  was 
thus  on  board  a  neutral  vessel  sailing  between  neutral  ports.  "When 
three  days  out  the  Mercury  was  overhauled  by  the  British  ship 
Vestal.  Mr.  Laurens  and  his  secretary  were  forcibly  removed,  their 
papers  were  seized,  and  they  were  conveyed  as  prisoners  to  St. 
Johns,  Newfoundland,  where  they  were  committed,  under  a  charge 
of  high-treason,  to  the  Tower  of  London.  After  the  surrender  at 
Yorktown  their  status  was  changed  to  that  of  prisoners  of  war.  and 
Mr.  Laurens  was  eventually  exchanged  for  Lord  Cornwallis. — Sparks, 
"Diplomatic  Correspondence,"  vol.  ii.,  p.  461;  Upton,  "Law  of  Na- 
tions Affecting  Commerce  during  War,"  pp.  360,  361. 


CONTRABAND  OF  WAR. 

interpose  an  effectual  check  upon  the  pretensions  of 
the  other.  The  result  was  that  the  rules  of  capture, 
on  land  and  sea,  underwent  a  considerable  modification 
in  the  interest  of  belligerents,  and  to  the  prejudice  of 
the  rights  of  neutrals,  as  those  rights  were  then  under- 
stood. This  influence  upon  the  law  of  maritime  capt- 
ure was  the  more  powerful  from  the  fact  that  the 
northern  states  of  Europe,  and,  to  a  certain  extent,  the 
United  States  as  well,  entered  into  general  commerce 
largely  as  producers  of  raw  materials,  which  were  con- 
sumed by  the  principal  belligerents,  and  so  were  obliged 
to  find  a  market  in  belligerent  territory.  Thus,  while 
these  states  were  generally  neutral,  they  were  not 
strong  enough  at  sea,  even  when  acting  in  concert,  to 
assert  effectively  their  views  of  neutrality,  or  even  to 
successfully  maintain  their  neutral  rights. 

Under  these  circumstances,  not  only  was  neutral 
commerce  likely  to  suffer  from  any  extension  of  the 
definition  of  contraband,  but  the  commercial  prosper- 
ity of  neutral  states  was  made  to  depend,  in  no  small 
degree,  upon  that  definition  being  closely  restricted  in 
its  application  to  neutral  property.  Such  an  extension 
was  effected  by  the  application  of  the  doctrine  of  occa- 
sional contraband,  by  the  English  prize  courts,  to  car- 
goes of  neutral  merchandise.  According  to  this  rule 
articles  were  condemned  which  had  previously  either 
been  exempt  from  seizure,  or,  if  regarded  as  contra- 
band, had  acquired  that  character  only  in  exceptional 
cases,  where  the  circumstances  pointed  clearly  to  an 
undoubtedly  hostile  destination.  The  articles  so  con- 
demned were  those  usually  classified  as  naval  stores 
and  provisions ;  and  neutral  states  resisted  the  applica- 
tion of  the  new  rule,  partly  because  of  the  extreme 


364:  OUTLINES  OF  INTERNATIONAL  LAW. 

hardship  of  the  case,  and  partly  because  it  was  not, 
and  had  never  been,  generally  recognized  as  a  rule  of 
International  Law. 

The  English  prize  courts  admitted  the  force  of  the 
objection,  and  the  irregularity  of  the  practice,  by  a 
somewhat  less  rigorous  application  of  the  new  rule, 
and  certain  mitigating  circumstances  were  recognized 
as  creating  presumptions  in  favor  of  innocence.  In 
their  application  of  the  modified  rule  it  was  held  that 
if  the  goods  were  produce  of  a  neutral  state,  and  were 
shipped,  as  raw  materials,  to  strictly  commercial  ports, 
these  facts  were  allowed  to  weigh  against  condemna- 
tion, and  in  favor  of  restoration. 

The  Rule  of  Pre-emption. — At  a  later  period  the  orig- 
inal doctrine  was  still  further  modified  by  the  adoption 
of  the  rule  of  pre-emption,  by  which  the  prize  courts, 
in  some  cases,  decreed  the  purchase  of  the  cargo  at  its 
value  at  the  port  of  origin,  with  a  fair  mercantile 
profit,  usually  ten  per  cent.,  instead  of  condemning  it 
as  contraband  of  war.  The  rule,  as  modified,  continued 
to  be  enforced  until  the  close  of  the  period  of  Napo- 
leonic wars.  Their  justice  was  not  discussed  at  the 
Congress  of  Vienna,  and  the  Treaty  of  Vienna  con- 
tained no  provisions  upon  the  subject  of  maritime 
capture,  or  contraband  of  war.  They  never  received 
such  general  sanction  as  to  entitle  them  to  be  accepted 
as  rules  of  International  Law.  On  the  other  hand, 
they  were  objected  to  from  the  first,  and  so  seriously 
as  to  lead  to  the  formation  of  alliances  to  resist  their 
application.  They  are  no  longer  seriously  maintained 
as  rules  of  international  obligation ;  and  it  may  safely 
be  said  that  no  modern  state  would  permit  the  proper- 
ty of  its  subjects  to  be  confiscated  by  the  operation  of 


CONTRABAND  OF  WAR.  355 

rules  the  justice  of  which  it  did  not  recognize,  or  by 
the  exercise  of  rights  which  were  not  sanctioned  by 
International  Law. 

References. — For  further  information  upon  this  subject  the  stu- 
dent is  referred  to  Vattel,  book  iii.,  chap,  vii.,  §§112, 113;  Azuni, 
vol.  ii.,  chap,  ii.,  pp.  144-157 ;  Hall,  part  iv.,  chaps,  v.,  vi. ;  Wheaton, 
Boyd's  edition,  §§  476-508 ;  Halleck,  chap.  xxvi. ;  Manning,  book 
v.s  chaps,  vii.,  viii. ;  Phillimore,  vol.  iii.,  pp.  387-472;  Wildman, 
vol.  ii.,  pp.  210-245 ;  Dahlgren,  pp.  65-100 ;  Woolsey,  §§  193-199 ; 
Nys,  "La  Guerre  Maritime,"  chap,  iii.;  Glass,  "Marine  Interna- 
tional Law,"  pp.  464-508 ;  G.  F.  De  Martens,  vol.  ii.,  §§  314-319 ; 
Wheaton,  "History  of  the  Law  of  Nations,"  pp.  115, 134,  and  313- 
401 ;  Kliibcr,  §§  288-292 ;  Heffter,  pp.  296,  304 ;  and  Hautefeuille, 
vol.  ii.,  pp.  69-189.  See  also  the  notes  to  the  article  "Contra- 
band," in  Dana's  and  Lawrence's  editions  of  Wheaton. 


CHAPTEE  XIII. 

BLOCKADE. 

1.  THE  most  effective  restraint  which,  the  law  of  na- 
tions permits  a  belligerent  to  impose  upon  neutral 
commerce,  is  that  involved  in  the  exercise  of  the  right 
of  blockade.  The  rules  of  maritime  capture  permit 
him  to  seize  upon  the  high  seas  certain  contraband  ar- 
ticles, which  are  destined  to  the  enemy's  use,  or  are 
calculated  to  aid  that  enemy  in  his  military  operations. 
But  non-contraband  articles  are  exempt  from  seizure, 
even  though  they  have  a  belligerent  destination,  and 
the  ship  incurs  no  liability  whatever.  By  the  estab- 
lishment of  a  blockade,  however,  he  may  not  only  pre- 
vent the  introduction  of  contraband  articles,  but  may 
absolutely  prohibit  access  to  his  enemy's  coast,  and  so, 
for  the  time,  interrupt  all  commercial  intercourse  with 
the  outside  world. 

Definition  of  a  Blockade. — The  interruption  or  sus- 
pension of  neutral  commerce  which  results  from  the 
forcible  closing  of  a  belligerent's  ports  or  harbors  is 
called  a  blockade. 

What  Places  may  be  Blockaded. — A  belligerent,  in 
the  exercise  of  this  right,  may  choose  any  port  or  har- 
bor of  his  enemy,  any  portion  of  his  coast  line,  or  any 
entrance  to  a  river,  gulf,  or  bay,  situated  entirely  with- 
in the  territorial  limits  of  a  hostile  state.  He  may  not, 
however,  by  the  establishment  of  a  blockade,  deny  ac- 
cess to  a  river,  or  other  navigable  water  boundary,  be- 


BLOCKADE.  367 

tween  the  territory  of  his  enemy  and  that  of  a  neutral. 
He  may  prevent  access  to  the  blockaded  coast  by  means 
of  ships  of  war  or  by  batteries  on  land,  or,  if  the  cir- 
cumstances be  favorable,  both  measures  may  be  resort- 
ed to:  He  may,  by  an  investment,  blockade  a  fortified 
place  on  land ;  as  an  incident  of  siege  operations,  or 
with  a  view  to  its  reduction  by  cutting  off  its  supplies 
of  food  or  water.  The  right  of  a  belligerent  to  block- 
ade an  enemy's  port  arises  from  his  right  to  besiege  it. 
The  right  is  the  same  in  both  cases ;  the  two  opera- 
tions differ  in  purpose  only ;  in  the  one  case  the  reduc- 
tion of  the  place  is  the  object  aimed  at ;  in  the  other 
the  interruption  of  commercial  intercourse. 

What  is  a  Valid  Blockade  f — At  one  time  consider- 
able doubt  existed  as  to  the  manner  in  which  an  ene- 
my's ports  should  be  closed,  in  order  to  constitute  a 
blockade"  which  should  be  valid  at  International  Law. 
This  was  set  at  rest  by  the  fourth  article  of  the  Decla- 
ration of  Paris,  which  provides  that  "  a  blockade,  to  be 
binding,  must  be  effective."  To  this  declaration  nearly 
all  the  civilized  states  of  the  world  were  signatory  par- 
ties, and,  as  the  United  States  has  always  maintained 
the  principle  announced  in  the  declaration,  that  rule 
may  now  be  accepted  as  the  existing  rule  of  Interna- 
tional Law  upon  the  subject. 

How  Established  and  Notified. — As  an  attempt  to 
enter  a  blockaded  port  is  a  flagrant  violation  of  Inter- 
national Law,  involving  both  ship  and  cargo  in  the  se- 
verest penalties,  it  is  important  that  official  informa- 
tion of  its  existence  should  be  conveyed  to  neutrals,  in 
order  that  they  may  know  when  intercourse  with  the 
place  becomes  illegal,  and  their  liability  to  capture  be- 
gins. This  is  important  because  none  but  effective 


368  OUTLINES  OF  INTERNATIONAL  LAW. 

blockades  are  recognized  as  lawful,  and,  until  a  de  facto 
blockade  is  established,  neutrals  are  under  no  obliga- 
tion to  relinquish  their  commercial  intercourse  with  an 
enemy's  port.  In  other  words,  a  neutral  vessel  incurs 
no  penalty  by  entering  a  port  which  is  not  actually 
blockaded  by  the  ships  or  batteries  of  a  belligerent. 
This  notification  is  given ' — 

(a.)  By  proclamation,  announcing  the  date  upon 
which  a  blockade  will  be  established  at  a  particular 
port.  If  a  force,  adequate  to  the  maintenance  of  the 
blockade,  be  not  stationed  opposite  the  blockaded  port 
on  the  date  mentioned  in  the  proclamation,  a  neutral 
vessel  incurs  no  penalty  by  entering  or  leaving  the 
port.  This  is  the  practice  of  England  and  the  United 
States. 

(&.)  By  Notification,  or  Endorsement.  —  This  is,  in 
substance,  a  warning  given  to  neutral  ships  which  are 
about  to  enter  a  blockaded  port.  The  notification  is 
given  by  ships  of  the  blockading  squadron,  and  is,  or 
should  be,  endorsed  on  the  ship's  papers  of  the  vessel 
notified,  or  warned  away.  An  attempt  to  enter  after 
such  notification  constitutes  a  breach  of  blockade,  and 
renders  the  vessel  liable  to  seizure  and  condemnation. 

(c.)  By  Proclamation  and  Notification. — This  is  a 
combination  of  the  preceding  methods.  A  proclama- 
tion is  first  issued,  fixing  the  date  upon  which  the  block- 
ade will  be  established.  A  neutral  vessel  approaching 
the  port  after  that  date  is  warned  off  by  the  blockad- 
ing squadron,  and  is  only  regarded  as  liable  to  capture 
if,  after  such  warning,  an  attempt  be  made  to  enter. 
This  rule  is  advocated  by  France,  and  was  outlined  by 

1  Dahlgren,  "International  Law,"  pp.  26,  61. 


BLOCKADE.  359 

the  President  of  the  United  States,  in  his  proclamation 
of  April  19,  1861.  The  prize  courts  of  the  United 
States  have  ruled  that  the  second  notification  is  not 
legally  necessary. 

It  is  thus  seen  that  a  mere  notification,  by  proclama- 
tion or  otherwise,  not  accompanied  by  the  presence  of 
a  squadron,  or  by  the  establishment  of  batteries  at  the 
blockaded  port,  does  not  constitute  a  valid  blockade  at 
International  Law.  On  the  other  hand,  if  a  de  facto 
blockade  be  established  by  a  belligerent  at  an  enemy's 
port,  it  must  be  respected  by  neutrals  as  having  the 
sanction  of  International  Law.  Neutral  vessels  at- 
tempting to  enter,  or  desiring,  in  good  faith,  to  ascer- 
tain whether  such  a  blockade  exists,  are  entitled  to 
a  notification  or  warning.  An  attempt  to  enter  by 
night,  or  by  the  use  of  force  or  deception ;  or  a  refusal 
to  stop,  or  to  observe  the  signals  and  warning  guns  of 
the  blockading  squadron,  renders  the  vessel  liable  to 
capture ;  the  presumption  being  that  a  breach  of  block- 
ade is  intended.  By  far  the  greater  number  of  at- 
tempts to  break  blockade  are  made  in  this  way.1 

The  presence  of  a  blockading  squadron  makes  either 
ingress  or  egress  unlawful.  Vessels  in  port  at  the  date 
when  the  blockade  begins  are  permitted  to  leave,  with 
whatever  cargo  they  may  have  on  board  at  that  time. 
In  strictness,  they  may  not  complete  their  lading,  after 
the  blockade  has  been  formally  established,  and  they 
have  been  held  liable  to  capture  for  so  doing.  As  the 
object  of  a  simple  blockade  is  the  interruption  of  com- 
mercial intercourse  only,  the  public  armed  vessels  of 
neutral  powers  are  usually  permitted  to  enter  and  leave 


1  Dahlgren,  p.  51 
24 


370  OUTLINES  OF  INTERNATIONAL  LAW. 

a  blockaded  port.  Their  visit  is  for  a  public  purpose ; 
they  do  not  carry  in  or  bring  out  merchandise,  and  so 
cannot  interfere  with  the  purpose  for  which  the  block- 
ade was  established.  Moreover,  a  refusal  to  permit 
them  to  enter  may  inflict  unnecessary  hardship  upon 
a  neutral  government,  or  its  subjects,  without,  in  any 
way,  contributing  to  the  purpose  for  which  the  war 
was  undertaken.1 

2.  Penalty  for  Breach  of  Blockade. — The  penalty 
for  breach  of  blockade  consists  in  the  forfeiture  of  the 
ship  and  cargo.  As  the  offence  consists  in  carrying  on 
commercial  intercourse  with  a  blockaded  port,  the  for- 
feiture includes  everything  Avhich  is  engaged  in  the 
illegal  venture.  "If  their  owners  are  different,  the 
vessel  may  be  condemned  irrespectively  of  the  latter, 
which  is  not  confiscated  when  the  person  to  whom  it 
belongs  is  ignorant  at  the  time  of  shipment  that  the 
port  of  destination  is  blockaded,  or  if  the  master  of 
the  vessel  deviates  to  a  blockaded  harbor.  If,  how- 
ever, such  deviation  takes  place  to  a  port  the  blockade 
of  which  was  known  before  the  ship  sailed,  the  act  is 
supposed  to  be  in  the  service  of  the  cargo,  and  the 
complicity  of  the  owner  is  assumed." a 

Cases  of  Innocent  Entrance  to  Blockaded  Ports. — 
Hall  mentions  a  few  instances  in  which  merchant  ves- 
sels may  pass  into,  or  out  of,  a  blockaded  port  without 
breach  of  blockade. 

(a.)  When  a  maritime  blockade  does  not  form  part 

:  Hall,  "  International  Law,"  p.  627;  the  Adonis,  Robertson,  "Ad- 
miralty Reports,"  vol.  v.,  p.  258;  the  Mariana  Flora,  Wheaton,  vol. 
vii.,  p.  59;  the  Alexander,  Robertson,  "Admiralty  Reports,"  vol. 
iv.,  p.  93. 

8  Dahlgren,  pp.  54-61;  Hall,  p.  628. 


BLOCKADE.  371 

of  a  combined  operation  by  sea  and  land,  internal 
means  of  transport  by  canals,  which  enable  a  ship  to 
gain  the  open  sea  at  a  point  which  is  not  blockaded, 
may  be  legitimately  used.  The  blockade  is  limited  in 
its  effect  by  its  own  physical  imperfection.  Thus,  dur- 
ing a  blockade  of  Holland,  a  vessel  and  cargo  sent  to 
Ernbden,  which  was  in  neutral  territory,  and  issuing 
from  that  port,  was  not  condemned.1 

(J.)  If  a  vessel  is  driven  into  a  blockaded  port  by 
such  distress  of  weather,  or  want  of  provisions,  or  wa- 
ter, as  to  render  entrance  an  unavoidable  necessity,  she 
may  issue  again,  provided  her  cargo  remains  intact.3 
And  a  ship  which  has  been  allowed  by  a  blockading 
force  to  enter,  within  its  sight,  is  justified  in  assuming 
a  like  permission  to  come  out ;  but  the  privilege  is  not 
extended  to  cargo  taken  on  board  in  the  blockaded 
port.3 

Duration  of  the  Penalty. — The  penalty  begins  when 
a  vessel  clears  from  a  neutral  port  with  a  hostile  desti- 
nation against  which  a  blockade  has  been  regularly 
established,  and  of  the  existence  of  which  the  neutral 
has,  or  is  presumed  to  have,  sufficient  knowledge.  An 
official  proclamation  of  a  blockade,  made  by  a  bellig- 
erent and  communicated  to  neutral  powers,  would  con- 
stitute such  a  presumption  of  knowledge.  If,  on  the 
other  hand,  the  blockade  existed  without  proclama- 
tion, the  presumption  would  be  in  favor  of  the  neutral 
vessel,  and  it  would  be  entitled  to  a  warning  in  ap- 
proaching the  blockaded  port.4 

1  The  Stert,  Robertson,  "Admiralty  Reports,"  vol.  iv.,  p.  65. 

2  The  Hurtige,  Hane,  ibid.,  vol.  iii.,  p.  326. 

3  Ibid.,  vol.  iii.,  p.  160;  Hall,  "International  Law,"  p.  628. 

4  Dahlgren,  pp.  43-54. 


372  OUTLINES  OF  INTERNATIONAL  LAW. 

The  former  rule  was  that,  if  the  distance  between 
the  ports  of  origin  and  destination  was  so  great  as  to 
require  a  considerable  time  in  the  prosecution  of  the 
voyage,  a  neutral  was  entitled  to  the  presumption  that 
the  blockade  had  been  raised  during  the  continuance 
of  his  voyage,  and  so  was  entitled  to  a  warning  if  the 
blockade  existed  at  the  time  of  his  arrival  at  the  port 
of  destination.  The  introduction  of  steam  and  the  tel- 
egraph, however,  have  made  it  practically  impossible 
for  such  a  state  of  affairs  to  exist  at  the  present  time. 
Indeed,  as  blockade  running  is  now  carried  on  in  swift 
steamers,  specially  constructed  for  the  purpose,  no  de- 
fence is  usually  attempted  in  the  case  of  a  vessel  capt- 
ured in  the  act. 

Breach  of  Blockade  by  Egress. — When  the  offence 
is  one  of  egress  the  penalty  continues  until  the  vessel 
reaches  the  territorial  waters  of  a  neutral  state.  The 
liability  to  capture  also  ceases  when  the  blockade  is 
raised  during  the  return  voyage,  since  the  offence  ex- 
ists only  so  long  as  the  blockade  exists.1 

3.  Termination  of  Blockade.  —  A  blockade  ceases 
when  it  is  discontinued  by  the  belligerent  who  estab- 
lishes it,  or  is  raised  by  an  exercise  of  force  on  the  part 
of  the  belligerent  against  whom  it  is  declared.  In  the 
latter  case  the  right  of  intercourse  with  the  port  is 
revived  in  favor  of  neutrals,  and  continues  to  exist 
until  the  blockade  is  formally  and  effectively  re-estab- 
lished. 

If  the  vessels  of  a  blockading  squadron  are  dis- 
persed by  a  storm,  the  binding  character  of  the  block- 
ade undergoes  no  change.  The  vessels  of  the  squad- 

1  Dahlgren,  p.  54. 


BLOCKADE.  373 

ron  return  to  their  stations,  the  blockade  is  resumed 
without  notice,  and  neutral  vessels  approach  at  their 
peril. 

4.  Pacific  Blockade. — The  right  to  establish  what 
is  called  a  pacific  blockade  has  been  asserted,  on  several 
occasions,  since  the  beginning  of  this  century.  It  has 
never  been  regarded  as  a  war  measure ;  nor  does  it  re- 
semble, except  in  name,  the  belligerent  right  of  block- 
ade which  is  sanctioned  by  International  Law.  Pacific 
blockades  have  always  been  made  the  subject  of  protest 
by  neutrals,  as  unduly  interfering  with  neutral  trade. 
That  such  an  operation  is  not  a  war  measure,  is  shown 
by  the  action  of  prize  courts  in  "  refusing  to  condemn 
as  prize  because  war  did  not  exist." !  It  must,  there- 
fore, be  regarded  as  a  measure  falling  short  of  war, 
and  must  be  justified,  in  any  particular  case,  by  the 
injury  suffered  by  the  state  which  resorts  to  it  as  a 
measure  of  obtaining  redress.  The  first  instance  of 
such  a  blockade  was  that  declared  by  England,  Eussia, 
and  France  against  the  Greek  ports  of  Turkey,  in 
1827.  Others  were  declared  by  England  and  France 
against  the  Argentine  Kepublic,  in  1838,  and  by  France 
against  Mexico,  in  1837.  The  former  of  these  was 
maintained  for  ten  years,  the  latter  for  less  than  two, 
terminating  with  the  capture  of  the  Castle  of  San  Juan 
de  Ulloa,  in  1838. 

References. — For  a  discussion  of  this  subject,  see  Hall,  chap, 
viii. ;  Boyd's  Wheaton,  §§  509-523 ;  Halleck,  vol.  ii.,  chap.  xxv. ; 
Manning,  bk.  v.,  chap.  ix. ;  Wildman,  vol.  ii.,  pp.  178-210;  Dahl- 
gren,  pp.  25-65  and  129-142;  Woolsey,  §§  202-207;  Nys,  "La 
Guerre  Maritime,"  chap.  iv. ;  Glass,  "Marine  International  Law," 

1  Dahlgren,  "International  Law,"  p.  27. 


374  OUTLINES  OF  INTERNATIONAL  LAW. 

pp.  423-462 ;  G.  F.  De  Martens,  vol.  ii.,  §  320 ;  Kliiber,  §§  297, 298 ; 
Heffter,  pp.  289-294 ;  Hautefeuille,  "  Droits  des  Nations  Neutres," 
vol.  ii.,  pp.  189-272 ;  Ortolan,  "  Diplomatie  de  la  Her,"  and  Whea- 
ton's  "  History,"  etc.,  pp.  137-144.  See,  also,  the  valuable  notes 
on  this  subject,  under  the  article  "Blockade,"  in  Dana's  and  Law- 
rence's editions  of  Wheaton. 


CHAPTEE  XIY. 

THE    RIGHT    OF     SEARCH. 

1.  THE  belligerent  rights  which  have  already  been 
discussed  —  of  capturing  enemy  property  at  sea,  of 
seizing  contraband  of  war,  and   of  blockading  the 
coasts  and  harbors  of  an  enemy — could  none  of  them 
be  made  effective  were  not  belligerents  also  accorded 
the  right  to  stop  and  search  all  neutral  merchant  ves- 
sels on  the  high  seas,  for  the  purpose  of  ascertaining 
their  nationality  and  destination,  the  character  and 
ownership  of  their  cargoes,  and  to  effect  their  capture, 
should  the  result  of  such  examination  show  a  liability 
to  capture  to  exist. 

2.  Definition  of  the  Right ;  when  and  where  Exer- 
cised.— The  right  to  stop  and  examine  neutral  vessels 
on  the  high  seas  is  called  the  belligerent  right  of  search. 
It  comes  into  existence  at  the  outbreak  of  war,  and  is 
terminated  by  the  treaty  of  peace.    Neutral  merchant 
vessels,  of  whatsoever  character,  are  at  all  times  sub- 
ject to  its  exercise,  and  must  submit  to  search  when 
required  to  do  so  by  a  properly  documented  armed 
vessel  of  either  belligerent.     If  they  refuse,  or  resist, 
they  are  subject  to  seizure  and  condemnation.     If  the 
right  be  exercised  by  a  belligerent  in  a  manner  not 
warranted  by  the  law  of  nations,  or  in  violation  of  the 
terms  of  a  treaty,  the  remedy  must  be  sought  through 
the  neutral  government  under  whose  flag  the  ship  sails. 


376  OUTLINES  OF  INTERNATIONAL  LAW. 

As  to  place,  the  right  of  search  may  be  exercised  wher- 
ever a  capture  may  lawfully  be  made,  i.  e.,  on  the  high 
seas,  or  within  the  territorial  waters  of  either  belliger- 
ent, but  never  in  neutral  waters. 

Manner  in  which  the  Right  is  Exercised. — The  man- 
ner in  which  the  right  of  search  is  to  be  exercised  is 
determined  by  the  usage  of  nations,  except  in  those 
cases  in  which  it  has  been  made  the  subject  of  treaty 
stipulation.  Many  such  treaties  are  in  existence,  and 
they  specify,  in  considerable  detail,  the  manner  in 
which  the  search  shall  be  conducted  by  war  ships  car- 
rying the  flags  of  the  signatory  powers.  The  duty  of 
submitting  is  only  incumbent  upon  neutral  merchant 
vessels.  Public  armed  vessels  are  not  subject  to  visita- 
tion, either  in  time  of  peace  or  war,  and  the  merchant 
vessels  of  a  belligerent  are  justified  in  resorting  to 
any  measures,  either  of  flight,  resistance,  or  deception, 
which  are  calculated  to  enable  them  to  escape  search 
and  inevitable  capture.  The  right  may  be  exercised 
by  the  regularly  commissioned  ships  of  war  of  a  bel- 
ligerent, or  by  duly  authorized  privateers  in  the  service 
of  those  states  which  still  retain  the  right  to  use  that 
species  of  naval  force  in  time  of  war. 

Under  ordinary  circumstances,  a  man-of-war,  in  ex- 
ecuting the  right  of  search,  hoists  its  national  color, 
and  fires  an  unshotted  gun,  as  a  signal  to  heave  to. 
This  is  called  the  coup  cP  assurance,  or  affirming  gun ; 
and  it  is  the  duty  of  the  neutral  ship,  on  receiving  this 
signal,  to  heave  to  at  once,  and  hoist  her  proper  na- 
tional flag.  Should  the  signal  not  be  obeyed,  and 
should  the  failure  to  obey  indicate  an  intention  to  re- 
sist search,  the  belligerent  cruiser  is  justified  in  resort- 
ing to  such  measures  of  force  as  will  compel  obedience 


THE  EIGHT  OF  SEARCH.  377 

to  its  summons.  An  attempt  at  flight,  unaccompanied 
by  resistance,  has  been  held  not  to  involve  the  ship 
making  it  in  the  penalty  for  resisting  search. 

The  distance  at  -which  the  searching  vessel  shall  re- 
main is  determined  by  the  judgment  of  her  command- 
ing officer,  based  upon  the  circumstances  of  wind  and 
tide,  upon  the  character  of  the  vessel  to  be  searched, 
and  the  necessity  of  remaining  within  easy  support- 
ing distance  of  the  boat's  crew  by  whom  the  search  is 
carried  on.  The  distance  at  which  a  man-of-war  shall 
remain,  when  not  regulated  by  treaty,  is  now  a  matter 
of  br.t  little  importance.  It  was  not  so,  however,  in 
former  times,  when  the  right  of  search  was  executed 
by  privateers,  whose  methods  of  search  and  capture 
were  not  above  suspicion,  and  when  piracy  was  a  crime 
of  much  more  frequent  occurrence  than  at  present.1 

Duty  of  Boarding  Party. — An  officer  is  sent  on 
board  to  conduct  the  search.  He  is  accompanied  by 
a  boat's  crew,  and  by  one  or  two  persons  to  assist  him 
in  the  performance  of  his  duty.  The  purpose  of  the 
search  may  be — 

(a.)  To  ascertain  from  the  ship's  papers  the  nation- 
ality and  destination  of  the  vessel. 

(£.)  To  ascertain  from  the  same  source  the  character 
and  destination  of  the  cargo. 

(<?.)  When  the  papers  do  not  contain  satisfactory 
information  as  to  the  character  and  destination  of  the 
ship  and  cargo,  to  ascertain  those  facts  by  actual  in- 
spection.2 

1  The  limitation  as  to  the  strength  of  the  search  party  can  be  traced 
to  a  similar  origin,  and,  like  the  former,  is  now  less  strongly  insist- 
ed upon  than  formerly. 

'-  Dahigren,  "International  Law,"  p.  100. 


378  OUTLINES  OF  INTERNATIONAL  LAW. 

If  the  ship's  papers  are  in  regular  form,  and  show  a 
lona  fide  neutral  origin  and  destination  of  ship  and 
cargo,  the  fact  of  the  search  having  been  made  is  noted 
upon  them  by  endorsement,  the  search  party  retires, 
and  the  vessel  is  allowed  to  proceed  on  its  voyage. 

If  the  papers  indicate  a  hostile  destination,  the  man- 
ifests, invoices,  and  bills  of  lading  are  examined,  to  as- 
certain whether  there  are  contraband  articles  on  board. 
If  such  be  found,  or  if  the  vessel  be  destined  to  a  block 
aded  port,  the  ship  is  declared  a  prize,  her  papers  are 
sealed,  and  she  is  sent  into  port  under  a  prize  master 
for  adjudication.  A  similar  course  is  pursued,  if  there 
is  sufficient  ground  for  believing  that  her  papers  are 
false ;  if  any  of  them  are  cojicealed,  or  have  been 
destroyed,  with  a  view  to  evade  examination,  or  if 
spoliation  has  been  practised. 

A  practice  has  obtained  to  some  extent  of  releasing 
a  neutral  ship,  and  allowing  it  to  continue  its  voyage 
on  condition  that  the  contraband  part  of  the  cargo  be 
surrendered.  This  method  of  procedure  is  irregular, 
without  warrant  of  law,  and  is  likely  to  lead  to  serious 
complications.  The  captor,  by  assuming  some  of  its 
functions,  greatly  embarrasses  the  proper  prize  court  in 
its  action  upon  the  captured  property.  The  ship's  pa- 
pers, which,  in  most  cases,  constitute  all  the  evidence 
upon  which  the  court  bases  its  decree,  remain  with  the 
neutral  vessel,  and  the  court  is  obliged  to  proceed  in 
the  case  without  sufficient  information.  The  master, 
under  his  general  authority  as  such,  cannot  effect  a 
legal  surrender  of  a  portion  of  his  cargo  in  such  a  way 
as  to  bind  the  owners.  His  action,  therefore,  in  a 
doubtful  case,  leaves  to  the  owners  the  right  of  de- 
manding, through  their  government,  the  restoration 


THE   RIGHT  OF  SEARCH.  379 

of  the  surrendered  cargo.  For  these  reasons  the  prac- 
tice should  not  be  resorted  to  unless  authorized  by 
treaty,  or  unless  the  owner,  either  personally  or  by 
his  duly  authorized  representative,  gives  a  legal  con- 
sent to  the  proposed  surrender. 

3.  The  Eight  of  Visitation. — The  belligerent  right 
of  search  has  never  been  seriously  questioned,  and  is 
accepted  by  all  nations  as  a  fact  inseparably  connected 
with  the  existence  of  war.  A  right  somewhat  resem- 
bling it,  called  the  right  of  visitation,  has  been  asserted 
to  exist  in  time  of  peace,  but  has  never  received  univer- 
sal sanction,  and  is  now  generally  abandoned,  save  in 
a  few  cases,  where  it  maintains  a  lingering  existence 
by  treaty.  In  the  long  controversy  which  was  carried 
on  as  to  the  assumed  legality  of  this  right,  during  the 
early  part  of  the  present  century,  England  and  the 
United"  States  were  the  principal  contestants. 

It  was  maintained,  on  the  part  of  the  British  govern- 
ment, that  the  rights  of  search  and  visitation  were  en- 
tirely distinct  from  each  other,  having  a  different  origin 
and  purpose.  The  right  of  search  was  peculiar  to  a 
state  of  war.  The  right  of  visitation  existed  in  peace, 
and  consisted  in  such  an  examination  of  merchant  ves- 
sels, on  the  high  seas,  as  was  necessary  to  determine 
their  nationality,  the  sufficiency  and  regularity  of  their 
papers,  and  the  legality  of  the  undertaking  in  which 
they  were  engaged. 

On  the  part  of  the  United  States,  it  was  contested 
that  the  right  of  search  was  an  incident  of  belligerency ; 
that  it  existed  only  during  the  continuance  of  war,  and 
not  only  did  not  exist  in  time  of  peace,  but  an  attempt 
to  exercise  it  was  an  invasion  of  sovereignty  which, 
if  not  disclaimed,  would  constitute  a  just  cause  for  war. 


380  OUTLINES  OF  INTERNATIONAL  LAW. 

The  controversy  was  brought  to  an  end,  in  1858,  by 
a  formal  renunciation,  on  the  part  of  the  British  gov- 
ernment, of  the  right  of  visitation  in  time  of  peace, 
except  in  cases  where  it  was  authorized  by  treaty  stip 
ulations.  Of  the  justice  and  expediency  of  this  aban- 
donment there  can  be  little  question.  The  crimes  of 
piracy  and  the  slave-trade,  the  prevalence  of  which 
furnished  the  only  reason  for  its  existence,  have  prac- 
tically disappeared.  Its  continued  exercise,  therefore, 
is  unnecessary,  giving  rise  to  constant  complaint  and 
frequent  international  misunderstanding ;  nor  can  any 
good  purpose  be  accomplished  by  it  which  could  not 
be  attained  by  the  use  of  other  and  less  questionable 
means.  It  lies  within  the  power  of  every  maritime 
state  to  establish  and  maintain  such  constant  police 
supervision  over  its  merchant  marine  as  will  prevent 
its  register  from  being  improperly  used,  and  its  flag  from 
covering  transactions  which  are  not  authorized  by  its 
municipal  laws,  or  sanctioned  by  the  law  of  nations.1 

Impressment  of  Seamen. — During  the  naval  wars 
succeeding  the  French  Revolution  the  British  govern- 
ment, in  exercising  the  right  of  search,  made  a  prac- 
tice of  extracting  certain  persons  from  neutral  vessels, 
claiming  that  they  were  British  subjects,  and  so  liable 
to  impressment  into  its  naval  service.2  The  exercise 
of  this  right,  which  never  received  the  sanction  of 


1  Halleck,  vol.  ii.,  pp.  268-283. 

2  The  practice  of  impressing  seamen  was  not  restricted  to  Ameri- 
can merchant  vessels  alone,  but  was  exercised  on  public  vessels  as 
well.    In  1798  the  British  war  ship  Carnatic,  seventy-four  guns, 
boarded  an  American  war  vessel  off  Havana.     See,  also,  the  case  of 
the  President,  Halleck,  vol.  ii.,  p.  303,  note;  Brenton,  "Naval  History 
of  Great  Britain,"  pp.  200-203. 


THE  RIGHT  OF  SEARCH.  33! 

International  Law,  bore  with  peculiar  hardship  upon 
vessels  sailing  under  the  American  flag ;  and  manned 
largely  by  persons  of  the  same  race,  and  speaking  the 
same  language,  as  those  by  whom  the  search  was  con- 
ducted, and  upon  whose  decision,  in  the  matter  of  na- 
tionality, the  question  of  seizure  largely  depended. 
On  the  part  of  Great  Britain,  it  was  alleged  that  an 
important  naval  war  was  being  carried  on,1  of  the  jus- 
tice of  which  there  could  be  no  question,  and  whose 
ultimate  success  involved  the  maintenance  of  enormous 
armaments  at  sea.  To  maintain  its  position,  the  Brit- 
ish government  had  been  obliged  to  impose  heavy  bur- 
dens upon  the  property  and  personal  services  of  its 
subjects,2  many  of  whom  had  attempted  to  evade  their 
obligation  by  taking  service  in  the  merchant  marine  of 
neutral  powers.  The  continued  exercise  of  this  right, 
in  the'face  of  repeated  protests,  led  to  the  war  of  1812, 
between  England  and  the  United  States ;  which  was 
terminated,  however,  without  a  definite  settlement  of 
this  important  question.  The  controversy  was  revived 
at  a  later  period,  and  was  exhaustively  discussed  by 
representatives  of  both  governments  in  a  long  and 
ably  conducted  diplomatic  correspondence.  It  was 
terminated,  so  far  as  the  American  government  was 
concerned,  by  an  announcement  of  policy  contained  in 
a  letter  of  Mr.  Webster  to  Lord  Ashburton,  bearing 
date  of  August  8, 1842.  "  The  American  government," 

1  It  has  been  estimated  that  at  one  time  over  seventy  thousand 
British  subjects  were  employed  in  the  naval  and  merchant  services 
of  foreign  powers. — Ashton,  "Old  Times." 

3  Article  45  of  the  "British  Navy  Regulations"  of  1787  required 
commanders  of  English  men-of-war  to  demand  English  seamen  out 
of  foreign  ships  wherever  met  with. — Halleck,  vol.  ii.,  p.  302,  note. 


382  OUTLINES  OF  INTERNATIONAL  LAW. 

says  Mr.  Webster,  "  is  prepared  to  say  that  the  prac- 
tice of  impressing  seamen  from  American  vessels  can- 
not hereafter  be  allowed  to  take  place.  That  practice 
is  founded  on  principles  which  it  does  not  recognize, 
and  is  invariably  attended  by  consequences  so  unjust, 
so  injurious,  and  of  such  formidable  magnitude,  as 
cannot  be  submitted  to.  In  the  early  disputes  be- 
tween the  two  governments  on  this  so  long  contested 
topic,  the  distinguished  person  to  whose  hands  were 
first  committed  the  seals  of  this  department  declared 
that  the  simplest  rule  will  be,  that  the  vessel,  being 
American,  shall  be  evidence  that  the  seamen  on  board 
are  such.  Fifty  years'  experience,  the  utter  failure  of 
many  negotiations,  and  a  careful  reconsideration,  now 
had,  of  the  whole  subject,  at  a  moment  when  the  pas- 
sions are  laid,  and  no  present  interest  or  emergency 
exists  to  bias  the  judgment,  have  fully  convinced  this 
government  that  this  is  not  only  the  simplest  and  best, 
but  the  only  rule  which  can  be  adopted  and  observed 
consistently  with  the  rights  and  honor  of  the  United 
States  and  the  security  of  their  citizens.1  That  rule 
announces,  therefore,  what  will  hereafter  be  the  prin- 
ciple maintained  by  their  government.  In  every  reg- 
ularly documented  American  merchant  vessel  the  crew 
who  navigate  it  will  find  their  protection  in  the  flag 
which  floats  over  them" 2 

1  The  "United  States  Navy  Regulations"  (1876)  contains  the  fol- 
lowing provision :  "  Commanders  of  public  vessels  of  war  are  not  to 
suffer  their  vessels  to  be  searched  by  any  foreign  power  under  any 
pretext,  nor  any  officers  or  men  to  be  taken  out,  so  long  as  they  have 
power  of  resistance.  If  force  be  used,  resistance  must  be  continued 
as  long  as  possible.  If  overcome,  they  are  to  yield  their  vessel,  but 
not  their  men  without  the  vessel." — "United  States  Navy  Regula- 
tions," ed.  1876,  p.  41,  par.  54. 

*  Secretary  "Webster  to  Lord  Ashburton,  Aug.  8,  1842;  "Webster 


THE   RIGHT  OF  SEARCH.  333 

4:.  The  Right  of  Convoy. — At  a  time  when  the  rules 
of  maritime  capture  were  rigidly  and,  at  times,  harshly 
and  unjustly  enforced,  it  is  not  remarkable  that  neu- 
trals should  have  sought  to  mitigate  their  severity  by 
advocating  methods  which,  while  securing  to  bellig- 
erents their  existing  rights,  were  also  calculated  to  re- 
lieve neutral  commerce  from  some  of  the  burdens  to 
which  it  was  exposed  in  war.  The  most  important 
attempt  of  this  kind  was  that  originated  by  the  Baltic 
powers,  toward  the  close  of  the  last  century,  which  has 
become  known  as  the  right  of  convoy.  It  was  con- 
tended, in  behalf  of  those  powers,  that  the  presence  of 
a  public  armed  vessel,  with  a  fleet  of  neutral  merchant 
ships,  was  sufficient  to  exempt  them  from  search  upon 
proper  assurance  being  given,  by  the  commanding  offi- 
cer of  ^the  armed  vessel,  that  the  ships  under  his  con- 
voy contained  neither  enemy  goods  nor  contraband  of 
war.  In  this  form  the  right  was  first  asserted  by  Swe- 
den, and  later  by  Holland,  in  the  seventeenth  century. 
The  latter  power,  however,  upon  becoming  a  belliger- 
ent, changed  its  policy,  and  refused  to  recognize  a  prac- 
tice for  which  it  had  formerly  contended  as  a  neutral. 
Renewed  interest  was  shown  in  the  subject  between 
the  years  1780  and  1800,  during  which  period  several 
treaties  were  entered  into,  chiefly  by  the  Baltic  pow- 
ers, stipulating  for  the  exemption  from  search  of  neu- 
tral vessels  under  neutral  convoy. 

The  introduction  of  the  new  rule  was  vigorously 
opposed  by  Great  Britain,  a  power  at  that  time  more 
interested  than  any  other  in  the  maintenance  of  bel- 


Diplomatic  and  Official  Papers,"  p.  101,  cited  by  Halleck,  vol.  ii., 
pp.  303,  304 


384  OUTLINES  OF  INTERNATIONAL  LAW. 

ligerent  rights  at  sea.  The  position  assumed  by  that 
government  was,  in  substance,  stated  by  Sir  William 
Scott,  in  the  case  of  the  Maria,  and  may  be  summa- 
rized as  follows : 

(a.}  The  laws  of  maritime  capture  give  to  a  belliger- 
ent an  incontestable  right  to  stop  and  search,  on  the 
high  seas,  all  neutral  merchant  vessels. 

(&.)  A  search,  to  be  lawful,  must  be  exercised  directly 
by  the  belligerent  cruiser,  a  separate  search  being  made 
in  the  case  of  each  neutral  vessel  encountered. 

(c.)  A  neutral  government  cannot  interpose  its  au- 
thority between  a  belligerent  armed  vessel  and  a  neu- 
tral merchant  ship,  by  giving  to  one  of  its  public  ves- 
sels instructions  which  are  calculated  to  abridge,  in 
any  manner,  the  belligerent  right  of  search. 

(d.)  The  resistance  of  a  convoying  ship  amounts,  in 
eifect,  to  resistance  to  search  on  the  part  of  the  mer- 
chant vessels  composing  the  convoy,  and  involves  them 
in  the  penalty  of  condemnation  for  such  resistance  of 
search.1 

As  England  was  at  that  time  sufficiently  powerful 
at  sea  to  maintain  its  view  against  the  opposition  of 
any  existing  state,  the  neutral  powers  regarded  the 
emergency  as  one  of  such  importance  as  to  seriously 
threaten  the  very  existence  of  their  commerce.  To 
protect  their  menaced  interests,  a  treaty  was  negoti- 
ated which  created  the  defensive  alliance  known  as  the 
Armed  Neutrality  of  1800,  the  purpose  of  which  was 
to  maintain  the  principle  of  convoy  as  described  in  the 
treaty.  In  1801,  however,  Russia,  though  a  party  to 
the  Armed  Neutrality,  entered  into  an  agreement  rec- 

1  Case  of  the  Maria,  Robinson,  "Admiralty  Reports,"  p.  340. 


THE  RIGHT  OF  SEARCH.  355 

ognizing  the  right  of  a  belligerent  to  visit  neutral  mer- 
chant vessels  sailing  under  a  convoy ;  and  the  constant- 
ly increasing  maritime  power  of  England  sufficed  to 
defer  indefinitely  the  general  adoption  of  the  principle 
of  convoy  as  a  rule  of  International  Law.  Since  the 
beginning  of  this  century,  the  right  has  been  stipulated 
for  in  a  number  of  treaties,  to  which  the  Continental 
states  of  Europe  have  been  parties.  England  alone 
refuses  to  recognize  the  right,  even  as  a  part  of  the 
conventional  law  of  nations,  as  she  has  ever  denied  its 
existence  as  a  custom  based  upon  general  international 
usage. 

The  views  held  as  to  the  right  of  convoy  by  the  dif- 
ferent departments  of  the  United  States  government 
have  been  at  considerable  variance.  The  political  de- 
partments have  uniformly  recognized  its  existence,  and 
have  endeavored  to  secure  its  general  acceptance  by 
treaty.  The  United  States  Navy  Eegulations  provide 
in  considerable  detail  for  the  manner  in  which  the  right 
of  convoy  shall  be  exercised  by  its  public  armed  ves- 
sels. If  the  convoyed  vessel  is  bound  to  a  belligerent 
port  the  commander  of  the  convoy  is  to  require  proof 
that  there  are  no  contraband  articles  on  board ;  and 
without  such  proof  he  is  not  to  afford  her  protection 
against  a  belligerent  cruiser,  unless  specially  directed 
to  do  so.  "  He  is  not  to  permit  the  vessels  under  his 
protection  to  be  searched,  or  detained,  by  any  belliger- 
ent cruiser."  l  The  judicial  department,  on  the  other 
hand,  has  followed  the  English  precedents  in  denying 
the  existence  of  the  right  of  convoy  as  a  rule,  or  prin- 
ciple, of  International  Law. 

1  "Navy  Regulations  of  the  United  States,"  1876,  pp.  133, 134. 
25 


386  OUTLINES  OF   INTERNATIONAL  LAW. 

At  the  present  time  it  is  not  believed  that  any  seri- 
ous objection  would  be  offered,  by  any  modern  state, 
to  the  general  adoption  of  the  principle  of  convoy  as  a 
rule  of  International  Law,  under  such  restrictions  as 
would  be  calculated  to  prevent  abuse,  and  accompa- 
nied by  such  conditions  as  would  secure  to  belligerents 
a  right  as  effective  as  that  which  they  noAV  enjoy. 
That  such  a  rule  has  not  been  adopted,  or  seriously  ad- 
vocated, is  doubtless  due  to  the  fact  that  the  necessity 
for  its  existence  has  passed  away.  The  introduction 
of  steam  navigation  involved  an  immediate  and  radical 
reorganization  of  the  carrying  trade  of  the  world.  The 
establishment  of  steamship  lines,  upon  the  old  routes 
of  commerce,  has  monopolized  a  trade  which  was  for- 
merly carried  on  in  sailing  vessels,  and  it  is  no  longer 
regarded  as  desirable  that  even  sailing  vessels,  in  time 
of  war,  should  move  in  fleets  or  convoys. 

5.  Searches  Authorized  in  Time  of  Peace. — The  right 
of  search  has  been  shown  to  be  a  belligerent  right,  and 
so  existent  only  in  time  of  war.  In  time  of  peace  a 
right  of  visitation  or  search  is  recognized  in  the  fol- 
lowing cases : 

(a.)  Search  to  Execute  Revenue  Laws. — Merchant 
vessels  coming  into  the  jurisdiction  of  a  state  are  sub- 
ject to  such  inspection,  and  their  cargoes  to  such  ex- 
amination and  search,  as  are  warranted  by  the  munic- 
ipal laws  of  that  state,  or  are  necessary  to  the  enforce- 
ment of  its  sanitary  and  customs  regulations.  A  vessel 
which  attempts  to  evade  such  inspection,  at  any  time 
during  its  sojourn,  may  be  detained,  and  subjected  to 
such  penalties  as  are  authorized  by  the  laws  of  the 
offended  state.  It  is  questionable  whether  the  right 
exists  of  pursuing  such  vessels  upon  the  high  seas,  and 


THE  RIGHT  OF  SEARCH.  387 

of  effecting  their  capture  beyond  the  jurisdictional 
waters  of  the  captor's  state.1  If  such  right  exists  at 
all,  it  is  based  upon  international  comity,  and,  in  any 
particular  case,  its  exercise  must  be  justified  by  the 
emergency  existing,  in  which  event  the  government  to 
which  the  offending  vessel  belongs  may,  and  usually 
does,  waive  its  strict  rights  in  the  premises,  and  de- 
clines to  protect  its  subjects  in  wrong-doing.2 

(5.)  Search  on  Suspicion  of  Piracy. — Public  armed 
vessels  of  any  state  are  justified,  when  reasonable 
grounds  of  suspicion  exist,  in  stopping  vessels  on  the 
high  seas  which  are  believed  to  be  engaged  in  piratical 
undertakings.  If  the  search  be  made  in  good  faith, 
and  upon  grounds  warranting  a  suspicion  of  piracy, 
no  claim  for  damage  can  be  established,  even  in  cases 
where  the  character  of  the  ship  visited  proves  to  be 
legitimate. 

(c.)  Search  of  Merchant  Ships  by  War  Vessels  of  the 
same  State. — The  public  armed  vessels  of  a  state  may 
execute  such  visits  of  search  and  inspection,  upon  mer- 
chant vessels  of  the  same  nationality,  as  are  authorized 
by  the  laws  of  the  state  under  whose  flag  they  sail. 
This  is  a  question  of  municipal  law  pure  and  simple, 
and  the  search  authorized  may  be  as  frequent  or  infre- 
quent, as  lax  or  as  vigorous,  as  is  deemed  best  by  the 
government  to  which  both  vessels  belong. 

(d.)  Right  of  Approach  to  Verify  Nationality. — 
Public  armed  vessels,  of  whatever  nationality,  are 
also  authorized  to  approach  merchant  vessels  on  the 

1  See  opinion  of  Lord  Stowell  in  the  case  of  the  Louis,  Dodson, 
"Admiralty  Reports,"  p.  246.  See,  also,  the  opinion  of  Sir  Travers 
Twiss,  in  the  case  of  the  Cagliari,  Boyd's  Wheaton,  p.  169. 

4  Lawrence's  Wheaton,  pp.  267-275. 


388  OUTLINES  OF  INTERNATIONAL  LAW. 

high  seas  for  the  purpose  of  ascertaining  their  nation- 
ality. In  the  performance  of  this  duty,  except  where 
suspicion  of  piracy  exists,  they  are  limited  to  hailing 
and  the  use  of  flags  and  signals.  They  board  such 
vessels  at  their  peril. 

Case  of  the  Virginius. — The  question  of  search  in 
peace  is  illustrated  by  the  case  of  the  Yirginius.  The 
Yirginius  was  a  steamer  which  had  been  specially  con- 
structed, in  England,  with  a  view  to  her  employment 
as  a  blockade  runner.  While  engaged  in  this  service 
she  was  captured  by  one  of  the  United  States  block- 
ading squadrons,  and  was  condemned  and  sold  for  vio- 
lation of  blockade.  She  afterward  came  into  posses- 
sion of  the  United  States,  in  satisfaction  of  a  debt,  and 
on  August  2,  1870,  was  sold,  ostensibly  to  one  Patter- 
son, a  resident  of  New  York.  At  this  sale  a  formal 
certificate  of  registry  was  issued,  giving  her  the  char- 
acter of  a  merchant  vessel  of  the  United  States.  From 
this  time,  until  1873,  she  was  engaged  in  various  under- 
takings, some  of  which  were  of  so  questionable  a  char- 
acter as  to  have  involved  the  forfeiture  of  her  register, 
had  they  been  made  known  to  the  proper  authority. 
No  complaint  appears  to  have  been  made  to  the  gov- 
ernment of  the  United  States  as  to  her  character,  or 
employment,  during  the  period  in  question. 

On  October  30,  1873,  she  sailed  from  Jamaica  for 
Port  Limon,  in  Costa  Rica,  carrying  the  American 
flag,  and  provided  with  regular  clearance  papers  from 
the  American  consul,  at  Kingston,  Jamaica.  On  Octo- 
ber 31,  while  on  the  high  seas,  about  twenty  miles 
distant  from  the  island  of  Cuba,  she  was  sighted  and 
chased  by  the  Spanish  war  steamer  Tornado.  After 
a  pursuit  of  about  eight  hours  she  was  captured,  on  the 


THE  RIGHT  OF  SEARCH.  339 

high  seas,  at  a  point  about  sixty  miles  distant  from  the 
coast  of  Cuba,  and  twenty-three  miles  from  the  island 
of  Jamaica,  in  which  direction  she  was  steaming  at 
the  time.  She  was  boarded  by  an  officer  of  the  Tor- 
nado, her  officers,  crew,  and  passengers  were  made  pris- 
oners, and  she  was  sent  under  a  prize  crew  to  the  Span- 
ish port  of  Santiago  de  Cuba,  where  she  arrived  on  the 
evening  of  November  1. 

At  nine  o'clock  on  the  morning  of  the  following  day 
a  court-martial  was  convened  for  the  trial  of  the  capt- 
ured persons,  who  were  arraigned  on  a  charge  of  piracy. 
The  court-martial  completed  its  labors  at  four  o'clock 
in  the  afternoon  of  the  same  day.  On  the  morning  of 
November  -i  four  persons  were  executed,  on  the  7th 
twelve,  on  the  13th  thirty-seven  more,  including  a  num- 
ber of  British  subjects  and  citizens  of  the  "United  States. 

The 'attention  of  the  Spanish  government  was  imme- 
diately drawn  to  the  occurrence,  and  protests  against 
the  action  of  its  subordinate  officials  were  made  by  the 
American  consuls  at  Havana  and  Santiago  de  Cuba, 
but  with  so  little  eif ect  that,  on  November  1-i,  the 
United  States  minister  to  Spain  was  instructed  to  de- 
mand the  restoration  of  the  steamer,  the  return  and 
delivery  to  the  United  States  of  the  persons  who  had 
been  captured,  and  the  punishment  of  the  officials  who 
had  been  concerned  in  the  capture  of  the  vessel  and 
the  execution  of  her  crew.  He  was  also  instructed  to 
demand  that  the  flag  of  the  United  States  should  be 
saluted  in  the  harbor  of  Santiago  de  Cuba.  After 
some  correspondence  between  the  two  governments 
an  agreement  was  entered  into  on  November  29,  be- 
tween the  Secretary  of  State  and  the  Spanish  minister 
in  "Washington,  stipulating  for  the  restoration  of  the 


390  OUTLINES  OF  INTERNATIONAL  LAW. 

vessel  and  the  surrender  of  the  survivors  of  the  pas* 
sengers  and  crew.  It  was  also  agreed  that  the  flag  of 
the  United  States  should  be  saluted  on  the  25th  day  of 
December  next  ensuing.  If,  however,  on  or  before 
that  date,  the  Spanish  government  should  prove  that 
the  Virginius  was  not  entitled  to  her  American  regis- 
ter, the  salute  was  to  be  spontaneously  dispensed  with ; 
the  United  States  agreeing  to  institute  legal  proceed- 
ings against  the  vessel,  if  it  should  be  found  that  she 
had  violated  any  law  of  the  United  States,  and  against 
any  person  who  was  shown  to  have  been  concerned  in 
such  violation. 

The  ship  and  survivors  were  surrendered  at  Santiago 
de  Cuba  on  December  18,  1873 ;  and,  it  having  been 
made  to  appear,  to  the  satisfaction  of  the  United  States, 
that  the  Yirginius  was  not  entitled  to  carry  its  flag 
and  papers,  the  Spanish  minister  was  formally  notified 
that  the  salute  would  be  dispensed  with. 

The  following  conclusions  seem  to  be  warranted  by 
the  facts  in  the  case : 

(«.)  The  Yirginius  was  not  a  pirate,  whatever  may 
have  been  the  character  of  the  transaction  in  which 
she  was  engaged,  and  the  Spanish  authorities  acted 
without  warrant  of  International  Law  in  proceeding 
against  the  crew  and  passengers  for  the  crime  of  pi- 
racy. 

(&.)  The  Spanish  government  would  have  been  justi- 
fied in  resisting  any  acts  of  war  or  hostility  directed 
against  itself,  and  occurring  within  its  territorial  wa- 
ters. It  matters  not  with  whom  such  acts  or  attempts 
originated,  or  by  whom  they  were  committed,  whether 
subjects  or  aliens.  Had  the  Yirginius,  therefore,  been 
found  in  Spanish  jurisdiction,  engaged  in  landing,  or 


THE  RIGHT  OF  SEARCH. 

attempting  to  land,  her  passengers  upon  the  coast  of 
Cuba,  her  forcible  seizure  would  have  been  justified. 
Had  resistance  been  offered,  that  resistance  could  have 
been  overcome  by  force  at  any  cost  of  life  or  property. 
The  treatment  of  those  on  board  would  then  have  been 
determined,  according  to  the  nature  and  degree  of  their 
offences,  by  the  municipal  laws  of  Spain.  If  the  pro- 
visions of  that  system  of  law  had  been  affected  or  mod- 
ified by  treaty  stipulations,  guaranteeing  to  the  citizens 
or  subjects  of  foreign  states  certain  rights  and  privi- 
leges in  the  event  of  their  being  charged  with  crime 
while  in  Spanish  jurisdiction,  the  government  of  Spain 
would  have  been  responsible  for  the  observance  of  the 
treaty  in  all  cases  to  which  its  provisions  applied. 

(c.)  The  pursuit  and  capture  of  the  vessel  on  the  high 
seas  was  an  act  of  very  doubtful  validity,  and  could 
only  "have  been  justified,  in  any  event,  by  the  extreme 
urgency  of  the  case,  and  then  only  in  the  exercise  of 
the  right  of  self-defence.  In  this  instance  it  is  ex- 
tremely doubtful  whether  such  an  emergency  existed 
as  to  justify  a  resort  to  force  in  self-defence.  The  Vir- 
ginius  was  flying  the  American  flag  when  sighted,  and 
had  not  then  entered  Spanish  waters ;  until  she  did  so 
enter  them  she  was  not  subject  to  visitation  and  search, 
still  less  to  pursuit  and  capture. 

(d.)  The  later  conduct  of  the  Spanish  authorities  in 
Cuba  can  only  be  characterized  as  unnecessary,  not 
warranted  by  the  emergency,  and  cruel  and  inhuman 
in  the  extreme.  It  was  also  contrary  to  the  stipula- 
tions of  treaties,  and  was  grossly  illegal  even  when 
judged  by  the  standard  of  the  municipal  law  of  Spain. 
The  Yirginius  was  an  unarmed  merchant  vessel.  She 
offered,  and  was  capable  of  offering,  no  resistance  to 


392  OUTLINES  OF  INTERNATIONAL  LAW. 

search  or  capture.  Her  passengers,  at  the  instant  of 
capture,  were  not  armed  or  organized,  and  so  were  in- 
capable of  levying  war  against  the  authority  of  Spain, 
whatever  may  have  been  their  ultimate  intention.  So 
soon  as  the  passengers  and  crew  were  made  prisoners 
they  were  absolutely  powerless  to  do  harm,  and  the 
fact  that  the  ship  sailed  under  the  American  flag 
should  have  suggested  such  reasonable  delay  in  the 
proceedings  against  them  as  would  have  sufficed  to 
enable  proper  representations  to  be  made  to  that  gov- 
ernment as  to  the  service  in  which  its  flag  and  papers 
were  being  used. 

(e.}  The  action  of  the  Spanish  authorities  in  this 
matter  would  not  have  been  justified  or  recognized  as 
lawful,  had  it  been  performed  by  a  belligerent  in  time 
of  war.  Had  a  state  of  open  war  existed,  and  had  the 
Yirginius  been  captured  at  sea  with  enemy  goods  or 
contraband  articles  on  board,  the  ship  would  not  have 
been  involved  in  the  forfeiture,  and  her  passengers  and 
crew  could  not  have  been  subjected  to  detention. 
Had  she  been  captured  in  the  act  of  violating  a  legal 
blockade,  the  ship  and  cargo  alone  would  have  been 
liable  to  forfeiture.  Had  she  been  engaged  in  carry- 
ing military  persons  to  a  hostile  destination  her  con- 
traband passengers  only  could  have  been  made  prison- 
ers of  war.  The  crew  could  have  incurred  no  penal 
consequences  for  their  share  in  the  transaction. 

References. — The  student,  for  fuller  discussion  of  this  subject,  is 
referred  to  Vattel,  bk.  iii.,  chap,  vii.,  §§  114-116";  Halleck,  vol.  ii., 
chap,  xxvii.,  with  the  references  there  given  to  the  "  American 
State  Papers ;"  Boyd's  Wheaton,  pp.  169-173  and  607-622 ;  Man- 
ning, bk.  v.,  chap.  xi. ;  Phillimore,  vol.  iii.,  pp.  522-558 ;  Dahlgren, 
pp.  100-110;  Woolsey,  §§  208-221;  Glass,  "Marine  International 


THE  RIGHT   OF  SEARCH.  393 

Law,"  pp.  509-552;  Dana's  Wheaton  and  Lawrence's  Wbeaton,  with 
their  references  to  the  correspondence  between  the  British  and 
American  governments  upon  the  question  of  impressment  and  the 
rights  of  visitation  and  search ;  G.  F.  De  Martens,  vol.  ii.,  §  321 ; 
Heffier,  pp.  318-328 ;  Wheaton,  "  History  of  the  Law  of  Nations," 
pp.  145-151,  392^49,  599-713;  Hautefeuille,  vol.  iii.,  pp.  1-208. 


APPENDIX  A. 

PROFESSOR  FRANCIS  LIBBER'S  INSTRUCTIONS  FOR 
THE  GOVERNMENT  OF  ARMIES  OF  THE  UNITED 
STATES  IN  THE  FIELD. 

THE  need  of  a  positive  code  of  instructions  was  severely 
felt  during  the  early  part  of  the  Civil  War  in  the  United 
States.  During  the  first  two  years  of  that  war  the  Fed- 
eral government  had  succeeded  in  placing  in  the  field 
armies  of  unexampled  size,  composed,  in  great  part,  of 
men  taken  from  civil  pursuits;  most  of  whom  were  unfa- 
miliar with  military  affairs,  and  so  utterly  unacquainted 
with  the  usages  of  war.  These  armies  were  carrying  on 
hostile  'operations,  of  every  kind,  over  a  wide  area,  and 
questions  of  considerable  intricacy  and  difficulty  were 
constantly  arising,  which  required  for  their  decision  a 
knowledge  of  International  Law  which  was  not  always 
possessed  by  those  to  whom  these  questions  were  submit- 
ted for  decision.  Conflicting  decisions  and  rulings  were 
of  frequent  occurrence,  in  different  armies,  and,  at  times, 
in  different  parts  of  the  same  field  of  operations;  and 
great  harm  not  infrequently  resulted  before  these  decis- 
ions could  be  reversed  by  competent  authority. 

To  remedy  this  difficulty  Professor  Francis  Lieber,  an 
eminent  jurist,  who  had  been  for  many  years  an  esteemed 
and  honored  citizen  of  the  United  States,  was  requested 
by  the  Secretary  of  War  to  prepare  a  code  of  instructions 
for  the  government  of  the  armies  in  the  field.  This  code, 
while  conforming  to  the  existing  usages  of  war  on  land, 
was  to  contain  such  modifications  as  were  necessary  to 
adapt  those  usages  to  the  peculiar  circumstances  of  the 


396  APPENDIX. 

contest  then  prevailing.  The  rules  prepared  by  Dr.  Lieber 
were  submitted  to  a  board  of  officers,  by  whom  they  were 
approved  and  recommended  for  adoption.  They  were 
published  in  1863,  and  were  made  obligatory  upon  the 
armies  of  the  United  States  by  their  publication  in  the 
form  of  a  General  Order  of  the  War  Department. 

Although  prepared  nearly  a  quarter  of  a  century  ago, 
they  are  still  in  substantial  accordance  with  the  existing 
rules  of  International  Law  upon  the  subject  of  which  they 
treat;  and  form  the  basis  of  Bluntschli's  and  other  elab- 
orate works  upon  the  usages  of  war.  They  are  accepted 
by  text  writers  of  authority  as  having  standard  and  per- 
manent value,  and  as  expressing,  with  great  accuracy,  the 
usage  and  practice  of  nations  in  war. 

There  has  been  some  misunderstanding,  however,  as  to 
the  force  and  significance  of  Professor  Lieber's  rules,  to 
which  it  is  proper  to  allude. 

The  war  which  existed  at  that  time  was  strictly  internal 
in  character;  and,  although  the  belligerency  of  the  states 
in  rebellion  had  been  recognized  by  the  Federal  govern- 
ment, the  character  of  the  contest,  in  many  of  its  aspects, 
differed  materially  from  an  external  war,  in  which  the  bel- 
ligerent parties  were  independent  states. 

The  war  policy  of  the  United  States  toward  the  insur- 
rectionary forces  was,  in  the  main,  in  accordance  with  the 
laws  of  war,  as  those  laws  were  then  accepted  and  under- 
stood. Its  enemies,  however,  were  its  own  citizens,  who, 
for  the  time,  denied  its  sovereign  authority,  and  refused 
obedience  to  its  laws.  Its  right  to  suppress  the  rebellion, 
and  its  right  to  choose  its  method  of  doing  so,  were  alike 
beyond  dispute.  In  the  exercise  of  this  right  it  was  at 
perfect  liberty  to  choose  any  policy  between  the  methods 
provided  by  its  municipal  laws,  on  the  one  hand,  and  those 
provided  by  the  law  of  nations  on  the  other. 

As  a  matter  of  fact  it  chose  a  war  policy  lying  between 


APPENDIX.  397 

the  extremes  above  indicated.  General  operations  in  the 
field  were  carried  on  in  accordance  with  the  laws  of  war. 
In  its  treatment  of  the  property  of  individuals  in  rebellion, 
in  its  view  of  occupation,  and  of  occupied  territory,  and 
in  its  policy  toward  the  residents  of  such  occupied  terri- 
tory, it  pursued  a  course  which  it  deemed  best  suited  to 
the  task  upon  which  it  was  then  engaged — the  suppression 
of  a  rebellion  against  its  authority. 

The  rules,  therefore,  cannot  fairly  be  said  to  contain  a 
full  expression  of  the  views  or  future  policy  of  that  gov- 
ernment upon  the  subject  of  external  war.  Should  such 
a  war  occur,  it  is  at  least  extremely  probable  that  the 
United  States  would  range  itself  with  those  powers,  whose 
practice  it  is  to  maintain  small  permanent  establishments, 
and  whose  policy  is  defensive  rather  than  offensive. 


(General  Orders  No.  100,  Adjutant  General's  Office,  1863.) 

INSTRUCTIONS    FOR   THE    GOVERNMENT    OF 

ARMIES   OF  THE   UNITED   STATES  IN 

THE  FIELD. 

PREPARED    BY  FRANCIS   LIEBEE,  LL.D.,  AND   EEVISED   BY    A 
BOAED  OF  OFFICEES  OF  THE  UNITED  STATES  AEMY. 

SECTION    I. 

MAETIAL    LAW. — MILITARY    JUEISDICTION. — MILITARY    NE- 
CESSITY.  RETALIATION. 

1.  A  place,  district,  or  country  occupied  by  an  enemy 
stands,  in  consequence  of  the  occupation,  under  the  Mar- 
tial Law  of  the  invading  or  occupying  army,  whether  any 
proclamation  declaring  Martial  Law,  or  any  public  warn- 
ing to  the  inhabitants,  has  been  issued  or  not.  Martial 


398  APPENDIX. 

Law  is  the  immediate  and  direct  effect  and  consequence 
of  occupation  or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  Martial 
Law. 

2.  Martial  Law  does  not  cease  during  the  hostile  occu- 
pation, except  by  special  proclamation,  ordered  by  the 
commander-in-chief,  or  by  special  mention  in  the  treaty 
of  peace  concluding  the  war,  when  the  occupation  of  a 
place   or  territory  continues  beyond  the   conclusion   of 
peace  as  one  of  the  conditions  of  the  same. 

3.  Martial  Law  in  a  hostile  country  consists  in  the  sus- 
pension, by  the  occupying  military  authority,  of  the  crim- 
inal and  civil  law,  and  of  the  domestic  administration  and 
government  in  the  occupied  place  or  territory,  and  in  the 
substitution  of  military  rule  and  force  for  the  same,  as 
well  as  in  the  dictation  of  general  laws,  as  far  as  military 
necessity  requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the 
administration  of  all  civil  and  penal  law  shall  continue, 
either  wholly  or  in  part,  as  in  times  of  peace,  unless  other- 
wise ordered  by  the  military  authority. 

4.  Martial  Law  is  simply  military  authority  exercised  in 
accordance  with  the  laws  and  usages  of  war.     Military 
oppression  is  not  Martial  Law;  it  is  the  abuse  of  the  power 
which  that  law  confers.     As  Martial  Law  is  executed  by 
military  force,  it  is  incumbent  upon  those  who  administer 
it  to  be  strictly  guided  by  the  principles  of  justice,  honor, 
and  humanity — virtues  adorning  a  soldier  even  more  than 
other  men,  for  the  very  reason  that  he  possesses  the  power 
of  his  arms  against  the  unarmed. 

5.  Martial  Law  should  be  less  stringent  in  places  and 
countries   fully   occupied   and   fairly   conquered.     Much 
greater  severity  may  be  exercised  in  places  or  regions 
where  actual  hostilities  exist,  or  are  expected  and  must 
be  prepared  for.     Its  most  complete  sway  is  allowed — 


APPENDIX.  399 

even  in  the  commander's  own  country — when  face  to  face 
with  the  enemy,  because  of  the  absolute  necessities  of  the 
case,  and  of  the  paramount  duty  to  defend  the  country 
against  invasion. 

To  save  the  country  is  paramount  to  all  other  consider- 
ations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual 
course  in  the  enemy's  places  and  territories  under  Martial 
Law,  unless  interrupted  or  stopped  by  order  of  the  occu- 
pying military  power;  but  all  the  functions  of  the  hostile 
government  —  legislative,  executive,  or  administrative — 
whether  of  a  general,  provincial,  or  local  character,  cease 
under  Martial  Law,  or  continue  only  with  the  sanction,  or, 
if  deemed  necessary,  the  participation  of  the  occupier  or 
invader. 

7.  Martial  Law  extends  to  property,  and  to  persons, 
whether  they  are  subjects  of  the  enemy  or  aliens  to  that 
governnfent. 

8.  Consuls,  among  American  and  European  nations,  are 
not   diplomatic   agents.     Nevertheless,  their  offices   and 
persons  will  be  subjected  to  Martial  Law  in  cases  of  ur- 
gent necessity  only;  their  property  and  business  are  not 
exempted.     Any  delinquency  they  commit  against  the  es- 
tablished military  rule  may  be  punished  as  in  the  case  of 
any  other  inhabitant,  and  such  punishment  furnishes  no 
reasonable  ground  for  international  complaint. 

9.  The   functions  of   ambassadors,  ministers,  or   other 
diplomatic  agents,  accredited  by  neutral  powers  to  the 
hostile  government,  cease,  so  far  as  regards  the  displaced 
government,;   but  the  conquering   or    occupying  power 
usually  recognizes  them  as  temporarily  accredited  to  it- 
self. 

10.  Martial  Law  affects  chiefly  the  police  and  collection 
of  public  revenue  and  taxes,  whether  imposed  by  the  ex- 
pelled government  or  by  the  invader,  and  refers  mainly 


400  APPENDIX. 

to  the  support  and  efficiency  of  the  army,  its  safety,  and 
the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty 
and  bad  faith  concerning  engagements  concluded  with 
the  enemy  during  the  war,  but  also  the  breaking  of  stipu- 
lations solemnly  contracted  by  the  belligerents  in  time  of 
peace,  and  avowedly  intended  to  remain  in  force  in  case 
of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  in- 
dividual gain;  all  acts  of  private  revenge,  or  connivance 
at  such  acts. 

Offences  to  the  contrary  shall  be  severely  punished,  and 
especially  so  if  committed  by  officers. 

12.  Whenever  feasible,  Martial  Law  is  carried  out  in 
cases  of  individual  offenders  by  military  courts;  but  sen- 
tences of  death  shall  be  executed  only  with  the  approval 
of  the  chief  executive,  provided  the  urgency  of  the  case 
does  not  require  a  speedier  execution,  and  then  only  with 
the  approval  of  the  chief  commander. 

13.  Military  jurisdiction   is   of  two   kinds:   first,  that 
which  is  conferred  and  defined  by  statute;  second,  that 
which  is  derived  from  the  common  law  of  war.     Military 
offences  under  the  statute  law  must  be  tried  in  the  man- 
ner therein  directed;  but  military  offences  which  do  not 
come  within  the  statute  must  be  tried  and  punished  under 
the  common  law  of  war.     The  character  of  the  courts 
which  exercise  these  jurisdictions  depends  upon  the  local 
laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised 
by  courts-martial ;  while  cases  which  do  not  come  within 
the  "  Rules  and  Articles  of  War,"  or  the  jurisdiction  con- 
ferred by  statute  on  courts-martial,  are  tried  by  military 
commissions. 

14.  Military  necessity,  as  understood  by  modern  civil- 
ized nations,  consists  in  the  necessity  of  those  measures 


APPENDIX.  401 

which  are  indispensable  for  securing  the  ends  of  the  war, 
and  which  are  lawful  according  to  the  modern  law  and 
usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction 
of  life  or  limb  of  armed  enemies,  and  of  other  persons 
whose  destruction  is  incidentally  unavoidable  in  the  armed 
contests  of  the  war;  it  allows  of  the  capturing  of  every 
armed  enemy,  and  every  enemy  of  importance  to  the  hos- 
tile government,  or  of  peculiar  danger  to  the  captor;  it 
allows  of  all  destruction  of  property,  and  obstruction  of 
the  ways  and  channels  of  traffic,  travel,  or  communication, 
and  of  all  withholding  of  sustenance  or  means  of  life  from 
the  enemy;  of  the  appropriation  of  whatever  an  enemy's 
country  affords  necessary  for  the  subsistence  and  safety 
of  the  army,  and  of  such  deception  as  does  not  involve 
the  breaking  of  good  faith  either  positively  pledged,  re- 
garding agreements  entered  into  during  the  war,  or  sup- 
posed by  the  modern  law  of  war  to  exist.     Men  who  take 
up  arms  against  one  another  in  public  war  do  not  cease 
on  this  account  to  be  moral  beings,  responsible  to  one  an- 
other, and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty;  that  is, 
the  infliction  of  suffering  for  the  sake  of  suffering  or  for 
revenge,  nor  of  maiming  or  wounding  except  in  fight,  nor 
of  torture  to  extort  confessions.     It  does  not  admit  of  the 
use  of  poison  in  any  way,  nor  of  the  wanton  devastation 
of  a  district.    It  admits  of  deception,  but  disclaims  acts  of 
perfidy;  and,  in  general,  military  necessity  does  not  include 
any  act  of  hostility  which  makes  the  return  to  peace  un- 
necessarily difficult. 

17.  War  is  not  carried  on  by  arms  alone.     It  is  lawful 
to  starve  the  hostile  belligerent,  armed  or  unarmed,  so 
that  it  leads  to  the  speedier  subjection  of  the  enemy. 

18.  "When  the  commander  of  a  besieged  place  expels  the 
non-combatants,  in  order  to  lessen  the  number  of  those 

26 


402  APPENDIX. 

who  consume  his  stock  of  provisions,  it  is  lawful,  though 
an  extreme  measure,  to  drive  them  back,  so  as  to  hasten 
on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  ene- 
my of  their  intention  to  bombard  a  place,  so  that  the  non- 
combatants,  and  especially  the  women  and  children,  may 
be  removed  before  the  bombardment  commences.     But  it 
\s  no  infraction  of  the  common  law  of  war  to  omit  thus 
to  inform  the  enemy.     Surprise  may  be  a  necessity. 

20.  Public  war  is  a  state  of  armed  hostility  between 
sovereign  nations  or  governments.     It  is  a  law  and  requi- 
site of  civilized  existence  that  men  live  in  political,  con- 
tinuous societies,  forming  organized  units,  called  states  or 
nations,  whose  constituents  bear,  enjoy,  and  suffer,  advance 
and  retrograde  together,  in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an 
enemy,  as  one  of  the  constituents  of  the  hostile  state  or 
nation,  and  as  such  is  subjected  to  the  hardships  of  the 
war. 

22.  Nevertheless,  as  civilization  has  advanced  during 
the  last  centuries,  so  has  likewise  steadily  advanced,  espe- 
cially in  war  on  land,  the  distinction  between  the  private 
individual  belonging  to  a  hostile  country  and  the  hostile 
country  itself,  with  its  men  in  arms.     The  principle  has 
been  more  and  more  acknowledged  that  the  unarmed  citi- 
zen is  to  be  spared  in  person,  property,  and  honor  as  much 
as  the  exigencies  of  war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved, 
.or  carried  off  to  distant  parts,  and  the  inoffensive  individ- 
ual is  as  little  disturbed  in  his  private  relations  as  the 
commander  of  the  hostile  troops  can  afford  to  grant  in 
the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and 
continues  to  be  with  barbarous  armies,  that  the  private 
individual  of  the  hostile  country  is  destined  to  suffer  every 


APPENDIX.  403 

privation  of  liberty  and  protection,  and  every  disruption 
of  family  ties.  Protection  was,  and  still  is  with  uncivil- 
ized people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their 
descendants  in  other  portions  of  the  globe,  protection  of 
the  inoffensive  citizen  of  the  hostile  country  is  the  rule; 
privation,  and  disturbance  of  private  relations,  are  the  ex- 
ceptions. 

26.  Commanding  generals  may  cause  the  magistrates 
and  civil  officers  of  the  hostile  country  to  take  the  oath  of 
temporary  allegiance  or  an  oath  of  fidelity  to  their  own 
victorious  government  or  rulers,  and  they  may  expel  every 
one  who  declines  to  do  so.     But  whether  they  do  so  or 
not,  the  people  and  their  civil  officers  owe  strict  obedience 
to  them  as  long  as  they  hold  sway  over  the  district  or 
country,  at  the  peril  of  their  lives. 

27.  The  law  of  war  can  no  more  wholly  dispense  with 
retaliation  than  can  the  law  of  nations,  of  which  it  is  a 
branch.     Yet  civilized  nations  acknowledge  retaliation  as 
the  sternest  feature  of  war.    A  reckless  enemy  often  leaves 
to  his  opponent  no  other  means  of  securing  himself  against 
the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as 
a  measure  of  mere  revenge,  but  only  as  a  means  of  pro- 
tective retribution,  and,  moreover,  cautiously  and  una- 
voidably; that  is  to  say,  retaliation  shall  only  be  resort- 
ed to  after  careful  inquiry  into  the  real  occurrence,  and 
the  character  of  the  misdeeds  that  may  demand  retribu- 
tion. 

Unjust  or  inconsiderate  retaliation  removes  the  bellig- 
erents farther  and  farther  from  the  mitigating  rules  of  a 
regular  war,  and  by  rapid  steps  leads  them  nearer  to  the 
internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by 
the  existence,  at  one  and  the  same  time,  of  many  nations 


'404:  APPENDIX. 

and  great  governments  related  to  one  another  in  close  in- 
tercourse. 

Peace  is  their  normal  condition;  war  is  the  exception. 
The  ultimate  object  of  all  modern  war  is  a  renewed  state 
of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is 
for  humanity.  Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  co-existence  of  modern 
nations,  and  ever  since  wars  have  become  great  national 
wars,  war  has  come  to  be  acknowledged  not  to  be  its  own 
end,  but  the  means  to  obtain  great  ends  of  state,  or  to 
consist  in  defence  against  wrong;  and  no  conventional  re- 
striction of  the  modes  adopted  to  injure  the  enemy  is  any 
longer  admitted;  but  the  law  of  war  imposes  many  limi- 
tations and  restrictions,  on  principles  of  justice,  faith,  and 
honor. 

SECTION  II. 

PUBLIC  AND  PRIVATE  PROPERTY  OF  THE  ENEMY. — PROTEC- 
TION OF  PERSONS,  AND  ESPECIALLY  WOMEN;  OF  RELIG- 
ION, THE  ARTS  AND  SCIENCES. PUNISHMENT  OF  CRIMES 

AGAINST  THE  INHABITANTS    OF  HOSTILE    COUNTRIES. 

31.  A  victorious  army  appropriates  all  public  money, 
seizes  all  public  movable  property  until  further  direction 
by  its  government,  and  sequesters  for  its  own  benefit  or 
that  of  its  government  all  the  revenues  of  real  property 
belonging  to  the  hostile  government  or  nation.     The  title 
to  such  real  property  remains  in  abeyance  during  military 
occupation,  and  until  the  conquest  is  made  complete. 

32.  A  victorious  army,  by  the  martial  power  inherent  in 
the  same,  may  suspend,  change,  or  abolish,  as  far  as  the 
martial  power  extends,  the  relations  which  arise  from  the 
services  due,  according  to  the  existing  laws  of  the  invaded 
country,  from  one  citizen,  subject,  or  native  of  the  same  to 
another. 


APPENDIX.  405 

The  commander  of  the  army  must  leave  it  to  the  ul- 
timate treaty  of  peace  to  settle  the  permanency  of  this 
change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary, 
it  is  held  to  be  a  serious  breach  of  the  law  of  war  —  to 
force  the  subjects  of  the  enemy  into  the  service  of  the 
victorious  government,  except  the  latter  should  proclaim, 
after  a  fair  and  complete  conquest  of  the  hostile  country 
or  district,  that  it  is  resolved  to  keep  the  country,  district, 
or  place  permanently  as  its  own,  and  make  it  a  portion  of 
its  own  country. 

34.  As  a  general  rule,  the  property  belonging  to  church- 
es, to  hospitals,  or  other  establishments  of  an  exclusively 
charitable  character,  to  establishments  of  education,  or 
foundations   for  the   promotion   of  knowledge,  whether 
public  schools,  universities,  academies  of  learning  or  ob- 
servatories, museums  of  the  fine  arts,  or  of  a  scientific 
character — such  property  is  not  to  be  considered  public 
property  in  the  sense  of  paragraph  31 ;  but  it  may  be  taxed 
or  used  when  the  public  service  may  require  it. 

35.  Classical  works  of  arts,  libraries,  scientific  collec- 
tions, or  precious  instruments,  such  as  astronomical  tele- 
scopes, as  well  as  hospitals,  must  be  secured  against  all 
avoidable  injury,  even  when  they  are  contained  in  fortified 
places  while  besieged  or  bombarded. 

36.  If  such  works  of  art,  libraries,  collections,  or  instru- 
ments belonging  to  a  hostile  nation  or  government,  can  be 
removed  without  injury,  the  ruler  of  the  conquering  state 
or  nation  may  order  them  to  be  seized  and  removed  for 
the  benefit  of  the  said  nation.     The  ultimate  ownership  is 
to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away,  if  captured 
by  the  armies  of  the  United  States,  nor  shall  they  ever  be 
privately  appropriated,  or  wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  protect,  in  hos- 


406  APPENDIX. 

tile  countries  occupied  by  them,  religion  and  morality; 
strictly  private  property;  the  persons  of  the  inhabitants, 
especially  those  of  women;  and  the  sacredness  of  domes- 
tic relations.  Offences  to  the  contrary  shall  be  rigorously 
punished. 

This  rule  does  not  interfere  with  the  right  of  the  victo- 
rious invader  to  tax  the  people  or  their  property,  to  levy 
forced  loans,  to  billet  soldiers,  or  to  appropriate  property, 
especially  houses,  land,  boats  or  ships,  and  churches,  for 
temporary  and  military  uses. 

38.  Private  property,  unless  forfeited  by  crimes  or  by 
offences  of  the  owner,  can  be  seized  only  by  way  of  mili- 
tary necessity,  for  the  support  or  other  benefit  of  the  army 
of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will 
cause  receipts  to  be  given,  which  may  serve  the  spoliated 
owner  to  obtain  indemnity. 

39.  The  salaries  of  civil  officers  of  the  hostile  govern- 
ment who  remain  in  the  invaded  territory,  and  continue 
the  work  of  their  office,  and  can  continue  it  according  to 
the  circumstances  arising  out  of  the  war — such  as  judges, 
administrative  or  police  officers,  offices  of  city  or  com- 
munal governments — are  paid  from  the  public  revenue  of 
the  invaded  territory,  until  the  military  government  has 
reason  wholly  or  partially  to  discontinue  it.     Salaries  or 
incomes  connected  with  purely  honorary  titles  are  always 
stopped. 

40.  There  exists  no  law  or  body  of  authoritative  rules 
of  action  between  hostile  armies,  except  that  branch  of 
the  law  of  nature  and  nations  which  is  called  the  laAV  and 
usages  of  war  on  land. 

41.  All  municipal  law  of  the  ground  on  which  the  armies 
stand,  or  of  the  countries  to  which  they  belong,  is  silent 
and  of  no  effect  between  armies  in  the  field. 

42.  Slavery,  complicating  and  confounding  the  ideas  of 


APPENDIX.  407 

property  (that  is  of  a  thing],  and  of  personality  (that  is 
of  humanity),  exists  according  to  municipal  law  or  local 
law  only.  The  law  of  nature  and  nations  has  never  ac- 
knowledged it.  The  digest  of  the  Roman  Law  enacts  the 
early  dictum  of  the  pagan  jurist,  that  "so  far  as  the  law 
of  nature  is  concerned,  all  men  are  equal."  Fugitives  es- 
caping from  a  country  in  which  they  were  slaves,  villains, 
or  serfs  into  another  country,  have,  for  centuries  past,  been 
held  free  and  acknowledged  free  by  judicial  decisions  of 
European  countries,  even  though  the  municipal  law  of  the 
country  in  which  the  slave  had  taken  refuge  acknowledged 
slavery  within  its  own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and 
a  belligerent  which  admits  of  slavery,  if  a  person  held  in 
bondage  by  that  belligerent  be  captured  by  or  come  as  a 
fugitive  under  the  protection  of  the  military  forces  of  the 
United  States,  such  person  is  immediately  entitled  to  the 
rights  and  privileges  of  a  freeman.   To  return  such  person 
into  slavery  would  amount  to  enslaving  a  free  person,  and 
neither  the  United  States  nor  any  officer  under  their  au- 
thority can  enslave  any  human  being.    Moreover,  a  person 
so  made  free  by  the  law  of  war  is  under  the  shield  of  the 
law  of  nations,  and  the  former  owner  or  state  can  have, 
by  the  law  of  postliminy,  no  belligerent  lien  or  claim  of 
service. 

44.  All  wanton  violence  committed  against  persons  in 
the  invaded  country,  all  destruction  of  property  not  com- 
manded by  the  authorized  officer,  all  robbery,  all  pillage 
or  sacking,  even  after  taking  a  place  by  main  force,  all 
rape,  wounding,  maiming,  or  killing  of  such  inhabitants, 
are  prohibited  under  the  penalty  of  death,  or  such  other 
severe  punishment  as  may  seem  adequate  for  the  gravity 
of  the  offence. 

A  soldier,  officer  or  private,  in  the  act  of  committing 
such  violence,  and  disobeying  a  superior  ordering  him  to 


408  APPENDIX. 

abstain  from  it,  may  be  lawfully  killed  on  the  spot  by  such 
superior. 

45.  All  captures  and  booty  belong,  according  to  the 
modern  law  of  war,  primarily  to  the  government  of  the 
captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be 
claimed  under  local  law. 

46.  Neither  officers  nor  soldiers  are  allowed  to  make 
use  of  their  position  or  power  in  the  hostile  country  for 
private  gain,  not  even  for  commercial  transactions  other- 
wise legitimate.     Offences  to  the  contrary  committed  by 
commissioned  officers  will  be  punished  with  cashiering  or 
such  other  punishment  as  the  nature  of  the  offence  may 
require;  if  by  soldiers,  they  shall  be  punished  according 
to  the  nature  of  the  offence. 

47.  Crimes  punishable  by  all  penal  codes,  such  as  arson, 
murder,  maiming,  assaults,  highway  robbery,  theft,  burg- 
lary, fraud,  forgery,  and  rape,  if  committed  by  an  American 
soldier  in  a  hostile  country  against  its  inhabitants,  are  not 
only  punishable  as  at  home,  but  in  all  cases  in  which  death 
is  not  inflicted,  the  severer  punishment  shall  be  preferred. 

SECTION  III. 

DESERTERS.  —  PRISONERS     OF    WAR. HOSTAGES. BOOTY 

ON   THE   BATTLE-FIELD. 

48.  Deserters  from  the  American  army,  having  entered 
the  service  of  the  enemy,  suffer  death  if  they  fall  again 
into  the  hands  of  the  United  States,  whether  by  capture, 
or  being  delivered  up  to  the  American  army;  and  if  a  de- 
serter from  the  enemy,  having  taken  service  in  the  army 
of  the  United  States,  is  captured  by  the  enemy,  and  pun- 
ished by  them  with  death  or  otherwise,  it  is  not  a  breach 
against  the  law  and  usages  of  war,  requiring  redress  or 
retaliation. 

49.  A  prisoner  of  war  is  a  public  enemy  armed  or  at- 


APPENDIX.  4.99 

tached  to  the  hostile  army  for  active  aid,  who  has  fallen 
into  the  hands  of  the  captor,  either  fighting  or  wounded, 
on  the  field  or  in  the  hospital,  by  individual  surrender  or 
by  capitulation. 

All  soldiers,  of  whatever  species  of  arms;  all  men  who 
belong  to  the  rising  en  masse  of  the  hostile  country;  all 
those  who  are  attached  to  the  army  for  its  efficiency  and 
promote  directly  the  object  of  the  war,  except  such  as  are 
hereinafter  provided  for;  all  disabled  men  or  officers  on 
the  field  or  elsewhere,  if  captured;  all  enemies  who  have 
thrown  away  their  arms  and  ask  for  quarter,  are  prisoners 
of  war,  and  as  such  exposed  to  the  inconveniences  as  well 
as  entitled  to  the  privileges  of  a  prisoner  of  war. 

50.  Moreover,  citizens   who   accompany  an   army   for 
whatever  purpose,  such  as  sutlers,  editors,  or  reporters  of 
journals,  or  contractors,  if  captured,  may  be  made  prison- 
ers of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  hostile  reigning  fam- 
ily, male  or  female,  the  chief,  and  chief  officers  of  the  hos- 
tile government,  its  diplomatic  agents,  and  all  persons  who 
are  of  particular  and  singular  use  and  benefit  to  the  hos- 
tile army  or  its  government,  are,  if  captured  on  belliger- 
ent ground,  and  if  unprovided  with  a  safe-conduct  granted 
by  the  captor's  government,  prisoners  of  war. 

51.  If  the  people  of  that  portion  of  an  invaded  country 
which  is  not  yet  occupied  by  the  enemy,  or  of  the  whole 
country,  at  the  approach  of  a  hostile  army,  rise  under  a 
duly  authorized  levy,  en  masse  to  resist  the  invader,  they 
are  now  treated  as  public  enemies,  and,  if  captured,  are 
prisoners  of  war. 

52.  No  belligerent  has  the  right  to  declare  that  he  will 
treat  every  captured  man  in  arms  of  a  levy  en  masse  as  a 
brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  any  portion  of 
the  same,  already  occupied  by  an  army,  rise  against  it, 


410  APPENDIX. 

they  are  violators  of  the  laws  of  war,  and  are  not  entitled 
to  their  protection. 

53.  The  enemy's  chaplains,  officers  of  the  medical  staff, 
apothecaries,  hospital  nurses  and  servants,  if  they  fall  into 
the  hands  of  the  American  army,  are  not  prisoners  of  war, 
unless  the  commander  has  reasons  to  retain  them.    In  this 
latter  case,  or  if,  at  their  own  desire,  they  are  allowed  to 
remain  with  their  captured  companions,  they  are  treated 
as  prisoners  of  war,  and  may  be  exchanged  if  the  com- 
mander sees  fit. 

54.  A  hostage  is  a  person  accepted  as  a  pledge  for  the 
fulfilment  of  an  agreement  concluded  between  belligerents 
during  the  war,  or  in  consequence  of  a  war.    Hostages  are 
rare  in  the  present  age. 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner 
of  war,  according  to  rank  and  condition,  as  circumstances 
may  admit. 

56.  A  prisoner  of  war  is  subject  to  no  punishment  for 
being  a  public  enemy,  nor  is  any  revenge  wreaked  upon 
him  by  the  intentional  infliction  of  any  suffering,  or  dis- 
grace, by  cruel  imprisonment,  want  of  food,  by  mutilation, 
death,  or  any  other  barbarity. 

57.  So  soon  as  a  man  is  armed  by  a  sovereign  govern- 
ment, and  takes  the  soldier's  oath  of  fidelity,  he  is  a  bellig- 
erent; his  killing,  wounding,  or  other  warlike  acts,  are  no 
individual  crimes  or  offences.     No  belligerent  has  a  right 
to  declare  that  enemies  of  a  certain  class,  color,  or  condi- 
tion, when  properly  organized   as   soldiers,  will  not  be 
treated  by  him  as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color, 
and  if  an  enemy  of  the  United  States  should  enslave  and 
sell  any  captured  persons  of  their  army,  it  would  be  a 
case  for  the  severest  retaliation,  if  not  redressed  upon  com- 
plaint. 

The  United  States  cannot  retaliate  by  enslavement ; 


APPENDIX. 

therefore  death  must  be   the  retaliation  for  this   crime 
against  the  law  of  nations. 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes 
committed  against  the  captor's  army  or  people,  committed 
before  he  was  captured,  and  for  which  he  has  not  been 
punished  by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retal- 
iatory measures. 

60.  It  is  against  the  usage  of  modern  war  to  resolve,  in 
hatred  and  revenge,  to  give  no  quarter.     No  body  of  troops 
has  the  right  to  declare  that  it  will  not  give,  and  therefore 
will  not  expect,  quarter  ;  but  a  commander  is  permitted  to 
direct  his  troops  to  give  no  quarter,  in  great  straits,  when 
his  own  salvation  makes  it  impossible  to  cumber  himself 
with  prisoners. 

61.  Troops  that  give  no  quarter  have  no  right  to  kill 
enemies,,  already  disabled  on  the  ground,  or  prisoners  capt- 
ured by  other  troops. 

62.  All  troops  of  the  enemy  known  or  discovered  to  give 
no  quarter  in  general,  or  to  any  portion  of  the  army,  re- 
ceive none. 

63.  Troops  who  fight  in  the  uniform  of  their  enemies, 
without  any  plain,  striking,  and  uniform  mark  of  distinc- 
tion of  their  own,  can  expect  no  quarter. 

64.  If  American  troops  capture  a  train  containing  uni- 
forms of  the  enemy,  and  the  commander  considers  it  ad- 
visable to  distribute  them  for  use  among  his  men,  some 
striking  mark  or  sign  must  be  adopted  to  distinguish  the 
American  soldier  from  the  enemy. 

65.  The  use  of  the  enemy's  national  standard,  flag,  or 
other  emblem  of  nationality,  for  the  purpose  of  deceiving 
the  enemy  in  battle,  is  an  act  of  perfidy  by  which  they 
lose  all  claim  to  the  protection  of  the  laws  of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  Ameri- 
can troops,  under  a  misapprehension  of  his  true  character, 


412  APPENDIX. 

he  may,  nevertheless,  be  ordered  to  suffer  death  if,  within 
three  days  after  the  battle,  it  be  discovered  that  he  be- 
longs to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations   allows  every  sovereign   gov- 
ernment to  make  war  upon  another  sovereign  state,  and, 
therefore,  admits  of  no  rules  or  laws  different  from  those 
of  regular  warfare,  regarding  the  treatment  of  prisoners 
of  war,  although  they  may  belong  to  the  army  of  a  gov- 
ernment which  the  captor  may  consider  as  a  wanton  and 
unjust  assailant. 

68.  Modern  wars  are  not  internecine  wars,  in  which  the 
killing  of  the  enemy  is  the  object.     The  destruction  of 
the  enemy  in  modern  war,  and,  indeed,  modern  war  itself, 
are  means  to  obtain  that  object  of  the  belligerent  which 
lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not 
lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired 
upon,  except  to  drive  them  in,  or  when  a  positive  order, 
special  or  general,  has  been  issued  to  that  effect. 

70.  The  use  of  poison  in  any  manner,  be  it  to  poison 
wells,  or  food,  or  arms,  is  wholly  excluded  from  modern 
warfare.     He  that  uses  it  puts  himself  out  of  the  pale  of 
the  law  and  usages  of  war. 

71.  Whoever  intentionally  inflicts  additional  wounds  on 
an  enemy  already  wholly  disabled,  or  kills  such  an  enemy, 
or  who  orders  or  encourages  soldiers  to  do  so,  shall  suffer 
death,  if  duly  convicted,  whether  he  belongs  to  the  army 
of  the  United  States,  or  is  an  enemy  captured  after  having 
committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  pris- 
oner, such  as  watches  or  jewelry,  as  well  as  extra  clothing, 
are  regarded  by  the  American  army  as  the  private  proper- 
ty of  the  prisoner,  and  the  appropriation  of  such  valuables 
or  money  is  considered  dishonorable,  and  is  prohibited. 


APPENDIX.  413 

Nevertheless,  if  large  sums  are  found  upon  the  persons 
of  prisoners,  or  in  their  possession,  they  shall  be  taken 
from  them,  and  the  surplus,  after  providing  for  their  own 
support,  appropriated  for  the  use  of  the  army,  under  the 
direction  of  the  commander,  unless  otherwise  ordered  by 
the  government.  Nor  can  prisoners  claim,  as  private  prop- 
erty, large  sums  found  and  captured  in  their  train,  although 
they  had  been  placed  in  the  private  luggage  of  the  pris- 
oners. 

73.  All  officers,  when  captured,  must  surrender  their 
side-arms  to  the  captor.     They  may  be  restored  to  the 
prisoner  in  marked  cases,  by  the  commander,  to  signalize 
admiration  of  his  distinguished  bravery,  or  approbation 
of  his  humane  treatment  of  prisoners  before  his  capture. 
The  captured  officer  to  whom,  they  may  be  restored  can- 
not wear  them  during  captivity. 

74.  A  prisoner  of  war  being  a  public  enemy,  is  the  pris- 
oner of  the  government,  and  not  of  the  captor.     No  ran- 
som can  be  paid  by  a  prisoner  of  war  to  his  individual 
captor,  or  to  any  officer  in  command.     The  government 
alone  releases  captives,  according  to  rules  prescribed  by 
itself. 

75.  Prisoners  of  war  are  subject  to  confinement  or  im- 
prisonment such  as  may  be  deemed  necessary  on  account 
of  safety,  but  they  are  to  be  subjected  to  no  other  inten- 
tional suffering  or  indignity.     The  confinement  and  mode 
of  treating  a  prisoner  may  be  varied  during  his  captivity 
according  to  the  demands  of  safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain  and  whole- 
some food  whenever  practicable,  and  treated  with  hu- 
manity. 

They  may  be  required  to  work  for  the  benefit  of  the 
captor's  government,  according  to  their  rank  and  condi- 
tion. 

77.  A  prisoner  of  war  who  escapes  may  be  shot,  or  oth- 


414  APPENDIX. 

erwise  killed  in  his  flight;  but  neither  death  nor  any  other 
punishment  shall  be  inflicted  upon  him  simply  for  his  at- 
tempt to  escape,  which  the  law  of  war  does  not  consider 
a  crime.  Stricter  means  of  security  shall  be  used  after  an 
unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of 
which  is  a  united  or  general  escape,  the  conspirators  may 
be  rigorously  punished,  even  with  death;  and  capital  pun- 
ishment may  also  be  inflicted  upon  prisoners  of  war  dis- 
covered to  have  plotted  rebellion  against  the  authorities 
of  the  captors,  whether  in  union  with  fellow-prisoners  or 
other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made 
any  promise  on  their  honor,  forcibly  or  otherwise  escape, 
and  are  captured  again  in  battle,  after  having  rejoined 
their  own  army,  they  shall  not  be  punished  for  their  es- 
cape, but  shall  be  treated  as  simple  prisoners  of  war,  al- 
though they  will  be  subjected  to  stricter  confinement. 

79.  Every  captured  wounded  enemy  shall  be  medically 
treated,  according  to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from 
giving  to  the  enemy  information  concerning  their  own 
army,  and  the  modern  law  of  war  permits  no  longer  the 
use  of  any  violence  against  prisoners,  in  order  to  extort 
the  desired  information,  or  to  punish  them  for  having 
given  false  information. 

SECTION  IV. 

PARTISANS. AHMED    ENEMIES    NOT    BELONGING    TO    THE 

HOSTILE    AEMY. SCOUTS. AKMED    PKOWLEKS. — WAR- 

EEBELS. 

81.  Partisans  are  soldiers  armed  and  wearing  the  uni- 
form of  their  army,  but  belonging  to  a  corps  which  acts 
detached  from  the  main  body  for  the  purpose  of  making 
inroads  into   the  territory  occupied  by  the  enemy.     If 


APPENDIX.  415 

captured,  they  are  entitled  to  all  the  privileges  of  the 
prisoner  of  war. 

82.  Men,  or   squads  of  men,  who   commit   hostilities, 
whether  by  fighting,  or  inroads  for  destruction  or  plunder, 
or  by  raids  of  any  kind,  without  commission,  without  be- 
ing part  and  portion  of  the  organized  hostile  army,  and 
without  sharing  continuously  in  the  war,  but  who  do  so 
with  intermitting  returns  to  their  homes  and  vocations, 
or  with  the  occasional  assumption  of  the  semblance  of 
peaceful  pursuits,  divesting  themselves  of  the  character  or 
appearance  of  soldiers — such  men,  or  squads  of  men,  are 
not  public  enemies,  and  therefore,  if  captured,  are  not  en- 
titled to  the  privileges  of  prisoners  of  war,  but  shall  be 
treated  summarily  as  highway  robbers  or  pirates. 

83.  Scouts,  or  single  soldiers,  if  disguised  in  the  dress 
of  the  country,  or  in  the  uniform  of  the  army  hostile  to 
their  own,  employed  in  obtaining  information,  if  found 
within  of  lurking  about  the  lines  of  the  captor,  are  treat- 
ed as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be 
called,  or  persons  of  the  enemy's  territory,  who  steal  with- 
in the  lines  of  the  hostile  army,  for  the  purpose  of  rob- 
bing, killing,  or  of  destroying  bridges,  roads,  or  canals,  or 
of  robbing  or  destroying  the  mail,  or  of  cutting  the  tele- 
graph wires,  are  not  entitled  to  the  privileges  of  the  pris- 
oner of  war. 

85.  War-rebels  are  persons  within  an  occupied  territory 
who  rise  in  arms  against  the  occupying  or  conquering 
army,  or  against  the  authorities  established  by  the  same. 
If  captured,  they  may  suffer   death,  whether  they  rise 
singly,  in  small  or  large  bands,  and  whether  called  upon 
to  do  so  by  their  own,  but  expelled,  government  or  not. 
They  are  not  prisoners  of  war;  nor  are  they,  if  discovered 
and  secured  before  their  conspiracy  has  matured  to  an 
actual  rising,  or  to  armed  violence. 


416  APPENDIX. 

SECTION  V. 

SAFE-CONDUCT. — SPIES. WAR-TRAITORS. — CAPTURED    MES- 
SENGERS.  ABUSE    OF   THE    FLAG    OF  TRUCE. 

86.  All  intercourse  between  the  territories  occupied  by 
belligerent  armies,  whether  by  traffic,  by  letter,  by  travel, 
or  in  any  other  way,  ceases.  This  is  the  general  rule,  to 
be  observed  without  special  proclamation. 

Exceptions  to  this  rule,  whether  by  safe  -  conduct,  or 
permission  to  trade  on  a  small  or  large  scale,  or  by  ex- 
changing mails,  or  by  travel  from  one  territory  into  the 
other,  can  take  place  only  according  to  agreement  ap- 
proved by  the  government,  or  by  the  highest  military  au- 
thority. 

Contraventions  of  this  rule  are  highly  punishable. 

8V.  Ambassadors,  and  all  other  diplomatic  agents  of 
neutral  powers,  accredited  to  the  enemy,  may  receive  safe- 
conducts  through  the  territories  occupied  by  the  belliger- 
ents, unless  there  are  military  reasons  to  the  contrary,  and 
unless  they  may  reach  the  place  of  their  destination  con- 
veniently by  another  route.  It  implies  no  international 
affront  if  the  safe-conduct  is  declined.  Such  passes  are 
usually  given  by  the  supreme  authority  of  the  state,  and 
not  by  subordinate  officers. 

88.  A  spy  is  a  person  who  secretly,  in  disguise  or  under 
false  pretence,  seeks   information  with  the  intention  of 
communicating  it  to  the  enemy. 

The  spy  is  punishable  with  death  by  hanging  by  the 
neck,  whether  or  not  he  succeed  in  obtaining  the  informa- 
tion or  in  conveying  it  to  the  enemy. 

89.  If  a  citizen  of  the  United  States  obtains  information 
in  a  legitimate  manner,  and  betrays  it  to  the  enemy,  be 
he  a  military  or  civil  officer,  or  a  private  citizen,  he  shall 
suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war-traitor,  is 


APPENDIX.  417 

a  person  in  a  place  or  district  under  martial  law  who,  un- 
authorized by  the  military  commander,  gives  information 
of  any  kind  to  the  enemy,  or  holds  intercourse  with  him. 

91.  The  war-traitor  is  always  severely  punished.     If  his 
offence  consists  in  betraying  to  the  enemy  anything  con- 
cerning the  condition,  safety,  operations,  or  plans  of  the 
troops  holding  or  occupying  the  place  or  district,  his  pun- 
ishment is  death. 

92.  If  the  citizen  or  subject  of  a  country  or  place  in- 
vaded or  conquered  gives  information  to  his  own  govern- 
ment, from  which  he  is  separated  by  the  hostile  army,  or 
to  the  army  of  his  government,  he  is  a  war-traitor,  and 
death  is  the  penalty  of  his  offence. 

93.  All  armies  in  the  field  stand  in  need  of  guides,  and 
impress  them  if  they  cannot  obtain  them  otherwise. 

94.  Xo  person  having  been  forced  by  the  enemy  to  serve 
as  guide  is  punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  volun- 
tarily serves  as  a  guide  to  the  enemy,  or  offers  to  do  so, 
he  is  deemed  a  war-traitor,  and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his 
own  country  commits  treason,  and  will  be  dealt  with  ac- 
cording to  the  law  of  his  country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have 
misled  intentionally,  may  be  put  to  death. 

98.  All  unauthorized  or  secret  communication  with  the 
enemy  is  considered  treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory, 
or  foreign  visitors  in  the  same,  can  claim  no  immunity 
from  this  law.  They  may  communicate  with  foreign 
parts,  or  with  the  inhabitants  of  the  hostile  country,  so 
far  as  the  military  authority  permits,  but  no  further.  In- 
stant expulsion  from  the  occupied  territory  would  be  the 
very  least  punishment  for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  despatches  or  verbal 
27 


418  APPENDIX. 

messages  from  one  portion  of  the  army,  or  from  a  be- 
sieged place,  to  another  portion  of  the  same  army,  or  its 
government,  if  armed,  and  in  the  uniform  of  his  army, 
and  if  captured  while  doing  so,  in  the  territory  occupied 
by  the  enemy,  is  treated  by  the  captor  as  a  prisoner  of 
war.  If  not  in  uniform,  nor  a  soldier,  the  circumstances 
connected  with  his  capture  must  determine  the  disposition 
that  shall  be  made  of  him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through 
the  territory  occupied  by  the  enemy,  to  further,  in  any 
manner,  the  interests  of  the  enemy,  if  captured,  is  not  en- 
titled to  the  privileges  of  the  prisoner  of  war,  and  may  be 
dealt  with  according  to  the  circumstances  of  the  case. 

101.  While  deception  in  war  is  admitted  as  a  just  and 
necessary  means  of  hostility,  and  is  consistent  with  honor- 
able warfare,  the  common  law  of  war  allows  even  capital 
punishment  for  clandestine  or  treacherous  attempts  to  in- 
jure an  enemy,  because  they  are  so  dangerous,  and  it  is  so 
difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the  criminal  law  regarding 
other  offences,  makes  no  difference  on  account  of  the  dif- 
ference of  sexes,  concerning  the  spy,  the  war-traitor,  or 
the  war-rebel. 

103.  Spies,  war  -  traitors,  and  war -rebels  are  not  ex- 
changed according  to  the  common  law  of  war.     The  ex- 
change of  such  persons  would  require  a  special  cartel, 
authorized  by  the  government,  or,  at  a  great  distance  from 
it,  by  the  chief  commander  of  the  army  in  the  field. 

104.  A  successful  spy  or  war-traitor,  safely  returned  to 
his  own  army,  and  afterwards  captured  as  an  enemy,  is 
not  subject  to  punishment  for  his  acts  as  a  spy  or  war- 
traitor,  but  he  may  be  held  in  closer  custody  as  a  person 
individually  dangerous. 


APPENDIX.  419 

SECTION  VI. 

EXCHANGE    OF   PRISONERS. FLAGS    OF   TKUCE. — FLAGS    OF 

PROTECTION. 

105.  Exchanges  of  prisoners  take  place  —  number  for 
number — rank  for  rank  —  wounded  for  wounded — with 
added  condition  for  added  condition — such,  for  instance, 
as  not  to  serve  for  a  certain  period. 

106.  In  exchanging  prisoners  of  war,  such  numbers  of 
persons  of  inferior  rank  may  be  substituted  as  an  equiva- 
lent for  one  of  superior  rank  as  may  be  agreed  upon  by 
cartel,  which  requires  the  sanction  of  the  govei'nment,  or 
of  the  commander  of  the  army  in  the  field. 

107.  A  prisoner  of  war  is  in  honor  bound  truly  to  state 
to  the  captor  his  rank;  and  he  is  not  to  assume  a  lower 
rank  than  belongs  to  him,  in  order  to  cause  a  more  advan- 
tageous exchange;  nor  a  higher  rank,  for  the  purpose  of 
obtaining  better  treatment. 

Offences  to  the  contrary  have  been  justly  punished  by 
the  commanders  of  released  prisoners,  and  may  be  good 
cause  for  refusing  to  release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining 
after  an  exchange  has  taken  place  is  sometimes  released 
either  for  the  payment  of  a  stipulated  sum  of  money,  or, 
in  urgent  cases,  of  provision,  clothing,  or  other  neces- 
saries. 

Such  arrangement,  however,  requires  the  sanction  of  the 
highest  authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  con- 
venience to  both  belligerents.     If  no  general  cartel  has 
been  concluded,  it  cannot  be  demanded  by  either  of  them. 
No  belligerent  is  obliged  to  exchange  prisoners  of  war. 

A  cartel  is  voidable  so  soon  as  either  party  has  vio- 
lated it. 

110.  No  exchange  of  prisoners  shall  be  made  except 


420  APPENDIX. 

after  complete  capture,  and  after  an  accurate  account  of 
them,  and  a  list  of  the  captured  officers,  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  cannot  insist  upon 
being  admitted.     He  must  always  be  admitted  with  great 
caution.    Unnecessary  frequency  is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during 
an  engagement,  he  can  be  admitted  as  a  very  rare  excep- 
tion only.     It  is  no  breach  of  good  faith  to  retain  such  a 
flag  of  truce,  if  admitted  during  the  engagement.     Firing 
is  not  required  to  cease  on  the  appearance  of  a  flag  of 
truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  presenting  himself 
during  an  engagement,  is  killed  or  wounded,  it  furnishes 
no  ground  of  complaint  whatever. 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag 
of  truce  has  been  abused  for  surreptitiously  obtaining 
military  knowledge,  the  bearer  of  the  flag  thus  abusing 
his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  nec- 
essary is  its  sacredness,  that  while  its  abuse  is  an  especially 
heinous  offence,  great  caution  is  requisite,  on  the  other 
hand,  in  convicting  the  bearer  of  a  flag  of  truce  as  a  spy. 

115.  It  is  customary  to  designate  by  certain  flags  (usu- 
ally yellow),  the  hospitals  in  places  which  are  shelled,  so 
that  the  besieging  enemy  may  avoid  firing  on  them.    The 
same  has  been  done  in  battles,  when  hospitals  are  situated 
within  the  field  of  the  engagement. 

116.  Honorable  belligerents  often  request  that  the  hos- 
pitals within  the  territory  of  the  enemy  may  be  desig- 
nated, so  that  they  may  be  spared. 

An  honorable  belligerent  allows  himself  to  be  guided 
by  flags,  or  signals  of  protection,  as  much  as  the  contin- 
gencies and  the  necessities  of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  in- 
famy or  fiendishness,  to  deceive  the  enemy  by  flags  of 


APPENDIX.  421 

protection.     Such  act  of  bad  faith  may  be  good  cause  for 
refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested 
the  besieged  to  designate  the  buildings  containing  collec- 
tions of  works  of  art,  scientific  museums,  astronomical  ob- 
servatories, or  precious  libraries,  so  that  their  destruction 
may  be  avoided  as  much  as  possible. 

SECTION  VII. 

THE    PAROLE. 

119.  Prisoners  of  war  may  be  released  from  captivity 
by  exchange,  and,  under  certain  circumstances,  also  by 
parole. 

120.  The  term  parole  designates  the  pledge  of  individ- 
ual good  faith  and  honor  to  do,  or  to  omit  doing,  certain 
acts  after  he  who  gives  his  parole  shall  have  been  dis- 
missed, wholly  or  partially,  from  the  power  of  the  captor. 

121.  The  pledge  of  the  parole  is  always  an  individual 
but  not  a  private  act. 

122.  The  parole   applies   chiefly  to  prisoners   of   war 
whom  the  captor  allows  to  return  to  their  country,  or  to 
live  in  greater  freedom  within  the  captor's  country  or  ter- 
ritory, on  conditions  stated  in  the  parole. 

123.  Release  of  prisoners  of  war  by  exchange  is  the 
general  rule;  release  by  parole  is  the  exception. 

124.  Breaking  the  parole  is  punished  with  death  when 
the  person  breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must 
be  kept  by  the  belligerents. 

125.  When  paroles  are  given  and  received,  there  must 
be  an  exchange  of  two  written  documents,  in  which  the 
name  and  rank  of  the  paroled  individuals  are  accurately 
and  truthfully  stated. 

126.  Commissioned  officers  only  are  allowed  to  give 
their  parole,  and  they  can  give  it  only  with  the  permission 


422  APPENDIX. 

of  their  superior,  as  long  as  a  superior  in  rank  is  within 
reach. 

127.  No  non-commissioned  officer  or  private  can  give 
his  parole  except  through  an  officer.     Individual  paroles 
not  given  through  an  officer  are  not  only  void,  but  subject 
the  individuals  giving  them  to  the  punishment  of  death  as 
deserters.     The  only  admissible  exception  is  where  indi- 
viduals, properly  separated  from  their  commands,  have 
suffered  long  confinement  without  the  possibility  of  being 
paroled  through  an  officer. 

128.  No  paroling  on  the  battle-field,  no  paroling  of  en- 
tire bodies  of  troops  after  a  battle,  and  no  dismissal  of 
large  numbers  of  prisoners,  with  a  general  declaration 
that  they  are  paroled,  is  permitted,  or  of  any  value. 

129.  In  capitulations  for  the  surrender  of  strong  places 
or  fortified  camps,  the  commanding  officer,  in  cases  of  ur- 
gent necessity,  may  agree  that  the  troops  under  his  com- 
mand shall  not  fight  again  during  the  war,  unless  ex- 
changed. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve 
during  the  existing  war,  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field, 
against  the  paroling  belligerent  or  his  allies  actively  en- 
gaged in  the  same  war.  These  cases  of  breaking  the  pa- 
role are  patent  acts,  and  can  be  visited  with  the  punish- 
ment of  death;  but  the  pledge  does  not  refer  to  internal 
service,  such  as  recruiting  or  drilling  the  recruits,  fortify- 
ing places  not  besieged,  quelling  civil  commotions,  fight- 
ing against  belligerents  unconnected  with  the  paroling 
belligerents,  or  to  civil  or  diplomatic  service  for  which 
the  paroled  officer  may  be  employed. 

131.  If  the  government  does  not  approve  of  the  parole, 
the  paroled  officer  must  return  into  captivity;  and  should 
the  enemy  refuse  to  receive  him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare,  by  a  gen- 


APPENDIX.  423 

eral  order,  whether  it  will  allow  paroling,  and  on  what 
conditions  it  will  allow  it.  Such  order  is  communicated 
to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the  hostile  gov- 
ernment to  parole  himself,  and  no  government  is  obliged 
to  parole  prisoners  of  war,  or  to  parole  all  captured  offi- 
cers if  it  paroles  any.     As  the  pledging  of  the  parole  is 
an  individual  act,  so  is  paroling,  on  the  other  hand,  an  act 
of  choice  on  the  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  require 
of  the  civil  officers  of  the  enemy,  and  of  its  citizens,  any 
pledge  he  may  consider  necessary  for  the  safety  or  secur- 
ity of  his  army;  and  upon  their  failure  to  give  it,  he  may 
arrest,  confine,  or  detain  them. 

SECTION  VIII. 

ABMISTICE. — CAPITULATION. 

135.  "An  armistice  is  the  cessation  of  active  hostilities 
for  a  period  agreed  upon  between  belligerents.     It  must 
be  agreed  upon  in  writing,  and  duly  ratified  by  the  high- 
est authorities  of  the  contending  parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it 
extends  no  further  than  to  require  a  total  cessation  of 
hostilities  along  the  front  of  both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  ex- 
pressed, and  must  be  rigidly  adhered  to  by  both  parties. 
If  either  party  violates  any  express  condition,  the  armis- 
tice may  be  declared  null  and  void  by  the  other. 

137.  An  armistice  may  be  general,  and  valid  for  all 
points  and  lines  of  the  belligerents;  or  special — that  is, 
referring  to  certain  troops  or  certain  localities  only. 

An  armistice  may  be  concluded  for  a  definite  time;  or 
for  an  indefinite  time,  during  which  either  belligerent  may 
resume  hostilities  on  giving  the  notice  agreed  upon  to  the 
other. 


424:  APPENDIX. 

138.  The  motives  which  induce  the  one  or  the  other 
belligerent  to  conclude  an  armistice,  whether  it  be  expect- 
ed to  be  preliminary  to  a  treaty  of  peace,  or  to  prepare 
during  the  armistice  for  a  more  vigorous  prosecution  of 
the  war,  do  in  no  way  affect  the  character  of  the  armistice 
itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from 
the  day  of  the  agreed  commencement;  but  the  officers  of 
the  armies  are  responsible  from  the  day  only  when  they 
receive  official  information  of  its  existence. 

140.  Commanding  officers  have  the  right  to  conclude 
armistices  binding  on  the  district  over  which  their  com- 
mand extends;  but  such  armistice  is  subject  to  the  ratifi- 
cation of  the  superior  authority,  and  ceases  so  soon  as  it 
is  made  known  to  the  enemy  that  the  armistice  is  not  rat- 
ified, even  if  a  certain  time  for  the  elapsing  between  giv- 
ing notice  of  cessation  and  the  resumption  of  hostilities 
should  have  been  stipulated  for. 

141.  It  is  incumbent  upon  the  contracting  parties  of  an 
armistice  to  stipulate  what  intercourse  of  persons  or  traf- 
fic between  the  inhabitants  of  the  territories  occupied  by 
the  hostile  armies  shall  be  allowed,  if  any. 

If  nothing  is  stipulated,  the  intercourse  remains  sus- 
pended, as  during  actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace; 
it  is  only  the  suspension  of  military  operations  to  the  ex- 
tent agreed  upon  by  the  parties. 

143.  When  an  armistice  is  concluded  between  a  fortified 
place  and  the  army  besieging  it,  it  is  agreed  by  all  the 
authorities  on  this  subject  that  the  besieger  must  cease  all 
extension,  perfection,  or  advance  of  his  attacking  works, 
as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial 
jurists,  whether  the  besieged  have  the  right  to  repair 
breaches  or  to  erect  new  works  of  defence  within  the 


APPENDIX.  425 

place  during  an  armistice,  this  point  should  be  determined 
by  express  agreement  between  the  parties. 

144.  So  soon  as  a  capitulation  is  signed,  the  capitulator 
has  no  right  to  demolish,  destroy,  or  injure  the  works, 
arms,  stores,  or  ammunition  in  his  possession,  during  the 
time  which  elapses  between  the  signing  and  the  execu- 
tion of  the  capitulation,  unless  otherwise  stipulated  in  the 
same. 

145.  "When  an  armistice  is  clearly  broken  by  one  of  the 
parties,  the  other  party  is  released  from  all  obligation  to 
observe  it. 

146.  Prisoners,  taken  in  the  act  of  breaking  an  armis- 
tice, must  be  treated  as  prisoners  of  war,  the  officer  alone 
being  responsible  who  gives  the  order  for  such  a  violation 
of  an  armistice.     The  highest  authority  of  the  belligerent 
aggrieved  may  demand  redress  for  the  infraction  of  an 
armistice. 

147.  Belligerents  sometimes  conclude  an  armistice  while 
their  plenipotentiaries  are  met  to  discuss  the  conditions  of 
a  treaty  of  peace;  but  plenipotentiaries  may  meet  without 
a  preliminary  armistice;  in  the  latter  case,  the  war  is  car- 
ried on  without  any  abatement. 

SECTION  IX. 

ASSASSINATION. 

148.  The  law  of  war  does  not  allow  proclaiming  either 
an  individual  belonging  to  the  hostile  army,  or  a  citizen, 
or  a  subject  of  the  hostile  government,  an  outlaw,  who 
may  be  slain  without  trial  by  any  captor,  any  more  than 
the  modern  law  of  peace  allows  such  international  outlaw- 
ry; on  the  contrary,  it  abhors  such  outrage.    The  sternest 
retaliation  should  follow  the  murder  committed  in  conse- 
quence of  such  proclamation,  made  by  whatever  authority. 
Civilized  nations  look  with  horror  upon  offers  of  rewards 
for  the  assassination  of  enemies,  as  relapses  into  barbarism. 


4:26  APPENDIX. 

SECTION  X. 

INSURRECTION. CIVIL    WAR. REBELLION. 

149.  Insurrection  is  the  rising  of  people  in  arms  against 
their  government,  or  a  portion  of  it,  or  against  one  or 
more  of  its  laws,  or  against  an  officer  or  officers  of  the 
government.     It  may  be  confined  to  mere  armed  resist- 
ance, or  it  may  have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more  portions  of 
a  country  or  state,  each  contending  for  the  mastery  of  the 
whole,  and  each  claiming  to  be  the  legitimate  government. 
The  term  is  also  sometimes  applied  to  war  of  rebellion, 
when  the  rebellious  provinces  or  portions  of  the  state  are 
contiguous  to  those  containing  the  seat  of  government. 

151.  The  term  rebellion  is  applied  to  an  insurrection  of 
large  extent,  and  is  usually  a  war  between  the  legitimate 
government  of  a  country  and  portions  or  provinces  of  the 
same  which  seek  to  throw  off  their  allegiance  to  it,  and 
set  up  a  government  of  their  own. 

152.  When  humanity  induces  the  adoption  of  the  rules 
of  regular  war  toward  rebels,  whether  the  adoption  is  par- 
tial or  entire,  it  does  in  no  way  whatever  imply  a  partial 
or  complete  acknowledgment  of  their  government,  if  they 
have  set  up  one,  or  of  them,  as  an  independent  or  sover- 
eign power.    Neutrals  have  no  right  to  make  the  adoption 
of  the  rules  of  war  by  the  assailed  government  toward 
rebels  the  ground  of  their  own  acknowledgment  of  the 
revolted  people  as  an  independent  power. 

153.  Treating  captured  rebels  as  prisoners  of  war,  ex- 
changing them,  concluding   of   cartels,  capitulations,  or 
other  warlike  agreements  with  them;  addressing  officers 
of  a  rebel  army  by  the  rank  they  may  have  in  the  same; 
accepting  flags  of  truce;  or,  on  the  other  hand,  proclaim- 
ing martial  law  in  their  territory,  or  levying  war-taxes  or 
forced  loans,  or  doing  any  other  act  sanctioned  or  de- 


APPENDIX.  427 

manded  by  the  law  and  usages  of  public  war  between 
sovereign  belligerents,  neither  proves  nor  establishes  an 
acknowledgment  of  the  rebellious  people,  or  of  the  gov- 
ernment which  they  may  have  erected,  as  a  public  or  sov- 
ereign power.  Nor  does  the  adoption  of  the  rules  of  war 
toward  rebels  imply  an  engagement  with  them  extending 
beyond  the  limits  of  these  rules.  It  is  victory  in  the  field 
that  ends  the  strife,  and  settles  the  future  relations  be- 
tween the  contending  parties. 

154.  Treating,  in  the  field,  the  rebellious  enemy  accord- 
ing to  the  law  and  usages  of  war,  has  never  prevented  the 
legitimate  government  from  trying  the  leaders  of  the  re- 
bellion or  chief  rebels  for  high-treason,  and  from  treating 
them  accordingly,  unless  they  are  included  in  a  general 
amnesty. 

155.  All  enemies  in  regular  war  are  divided  into  two 
general  classes;  that  is  to  say,  into  combatants  and  non- 
combatants,  or  unarmed  citizens  of  the  hostile  govern- 
ment. 

The  military  commander  of  the  legitimate  government, 
in  a  Avar  of  rebellion,  distinguishes  between  the  loyal  citi- 
zen in  the  revolted  portion  of  the  country  and  the  disloyal 
citizen.  The  disloyal  citizens  may  further  be  classified 
into  those  citizens  known  to  sympathize  with  the  rebel- 
lion, without  positively  aiding  it,  and  those  who,  without 
taking  up  arms,  give  positive  aid  and  comfort  to  the  re- 
bellious enemy,  without  being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that 
the  military  commander  protect  the  manifestly  loyal  citi- 
zens, in  revolted  territories,  against  the  hardships  of  the 
war,  as  much  as  the  common  misfortune  of  all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as 
much  as  lies  within  his  power,  on  the  disloyal  citizens  of 
the  revolted  portion  or  province,  subjecting  them  to  a 
stricter  police  than  the  non-combatant  enemies  have  to 


428  APPENDIX. 

suffer  in  regular  war;  and  if  he  deems  it  appropriate,  or 
if  his  government  demands  of  him,  that  every  citizen  shall, 
by  an  oath  of  allegiance,  or  by  some  other  manifest  act, 
declare  his  fidelity  to  the  legitimate  government,  he  may 
expel,  transfer,  imprison,  or  fine  the  revolted  citizens  who 
refuse  to  pledge  themselves  anew  as  citizens  obedient  to 
the  law,  and  loyal  to  the  government. 

"Whether  it  is  expedient  to  do  so,  and  whether  reliance 
can  be  placed  upon  such  oaths,  the  commander  or  his  gov- 
ernment have  the  right  to  decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the 
United  States  against  the  lawful  movements  of  their 
troops,  is  levying  war  against  the  United  States,  and  is 
therefore  treason. 


APPENDIX  B. 

THE  GENEVA  CONVENTION  FOR  THE  AMELIORATION 
OF  THE  CONDITION  OF  THE  SICK  AND  WOUNDED 
OF  ARMIES  IN  THE  FIELD. 

Art.  I. — Ambulances  and  military  hospitals  shall  be  ac- 
knowledged to  be  neuter,  and,  as  such,  shall  be  protected 
and  respected  by  belligerents  so  long  as  any  sick  or 
wounded  may  be  therein.  Such  neutrality  shall  cease  if 
the  ambulances  or  hospitals  should  be  held  by  a  military 
force. 

Art.  II. — Persons  employed  in  hospitals  and  ambulances, 
comprising  the  staff  for  superintendence,  medical  service, 
administration,  transport  of  wounded,  as  well  as  chaplains, 
shall  participate  in  the  benefit  of  neutrality,  while  so  em- 
ployed, and  so  long  as  there  remain  any  wounded  to  bring 
in  or  to  succor. 

Art.  III. — The  persons  designated  in  the  preceding  arti- 
cle may,  even  after  occupation  by  the  enemy,  continue  to 
fulfil  their  duties  in  the  hospital  or  ambulance  which  they 
serve,  or  may  withdraw  in  order  to  rejoin  the  corps  to 
which  they  belong. 

Under  such  circumstances,  when  these  persons  shall 
cease  from  their  functions,  they  shall  be  delivered  by  the 
occupying  army  to  the  outposts  of  the  enemy. 

Art.  IV. — As  the  equipment  of  military  hospitals  re- 
mains subject  to  the  laws  of  war,  persons  attached  to  such 
hospitals  cannot,  in  withdrawing,  carry  away  any  articles 
but  such  as  are  their  private  property. 

Under  the  same  circumstances  an  ambulance  shall,  on 
the  contrary,  retain  its  equipment. 


430  APPENDIX. 

Art.  V. — Inhabitants  of  the  country  who  may  bring 
help  to  the  wounded  shall  be  respected,  and  shall  remain 
free.  The  generals  of  the  belligerent  powers  shall  make 
it  their  care  to  inform  the  inhabitants  of  the  appeal  ad- 
dressed to  their  humanity,  and  the  neutrality  which  will 
be  the  consequence  of  it. 

Any  wounded  man  entertained  and  taken  care  of  in  a 
house  shall  be  considered  a  protection  thereto.  Any  in- 
habitant who  shall  have  entertained  wounded  men  in  his 
house  shall  be  exempted  from  the  quartering  of  troops,  as 
well  as  from  a  part  of  the  contributions  of  war  which 
may  be  imposed. 

Art.  VI. — Wounded  or  sick  soldiers  shall  be  entertained 
and  taken  care  of,  to  whatever  nation  they  may  belong. 

Commanders-in-chief  shall  have  the  power  to  deliver 
immediately,  to  the  outposts  of  the  enemy,  soldiers  who 
have  been  wounded  in  an  engagement,  when  circumstances 
permit  this  to  be  done,  and  with  the  consent  of  both 
parties. 

Those  who  are  recognized,  after  their  wounds  are  healed, 
as  incapable  of  serving,  shall  be  sent  back  to  their  own 
country. 

The  others  may  also  be  sent  back,  on  condition  of  not 
bearing  arms  during  the  continuance  of  the  war. 

Evacuations,  together  with  the  persons  under  whose 
direction  they  shall  take  place,  shall  be  protected  by  an 
absolute  neutrality. 

Art.  VII. — A  distinctive  and  uniform  flag  shall  be 
adopted  for  hospitals,  ambulances,  and  evacuations.  It 
must  on  every  occasion  be  accompanied  by  the  national 
flag.  An  arm  badge  (brassard)  shall  also  be  allowed  for 
individuals  neutralized,  but  the  delivery  thereof  shall  be 
left  to  military  authority. 

The  flag  and  arm  badge  shall  bear  a  red  cross  on  a 
white  ground. 


APPENDIX.  431 

Art.  VIII. — The  details  of  execution  of  the  present 
convention  shall  be  regulated  by  the  commanders-in-chief 
of  belligerent  armies,  according  to  the  instructions  of  their 
respective  governments,  and  in  conformity  with  the  gen- 
eral principles  laid  down  in  this  convention. 

Art.  IX. — The  high  contracting  powers  have  agreed  to 
communicate  the  present  convention  to  those  governments 
which  have  not  found  it  convenient  to  send  plenipoten- 
tiaries to  the  International  Convention  at  Geneva,  with 
an  invitation  to  accede  thereto;  the  protocol  is  for  that 
purpose  left  open. 

Art.  X. — The  present  convention  shall  be  ratified,  and 
the  ratifications  exchanged  at  Berne,  in  four  months,  or 
sooner  if  possible. 

ADDITIONAL  ARTICLES. 

Art.  I. — The  persons  designated  in  Article  II.  of  the 
Convention  shall,  after  the  occupation  by  the  enemy,  con- 
tinue to  fulfil  their  duties  to  the  sick  and  wounded,  ac- 
cording to  their  wants,  in  the  ambulance  or  hospital  which 
they  serve.  When  they  request  to  withdraw,  the  com- 
mander of  the  occupying  troops  shall  fix  the  time  of  de- 
parture, which  he  shall  only  be  allowed  to  delay  for  a 
short  time  in  case  of  military  necessity. 

Art.  II. — Arrangements  will  have  to  be  made  by  the 
belligerent  powers  to  assure  to  the  neutralized  person, 
fallen  into  the  hands  of  the  army  of  the  enemy,  the  entire 
enjoyment  of  his  salary. 

Art.  III. — Under  the  conditions  provided  for  in  Arti- 
cles I.  and  IV.  of  the  Convention,  the  name  "  ambulance  " 
applies  to  field  hospitals  and  other  temporary  establish- 
ments, which  follow  the  troops  on  the  field  of  battle  to 
receive  the  sick  and  wounded. 

Art.  IV. — In  conformity  with  the  spirit  of  Article  V. 
of  the  Convention,  and  to  the  reservations  contained  in 


432  APPENDIX. 

the  protocol  of  1864,  it  is  explained  that  for  the  appoint- 
ment of  the  charges  relative  to  the  quartering  of  troops, 
and  of  the  contributions  of  war,  account  only  shall  be 
taken  in  an  equitable  manner  of  the  charitable  zeal  dis- 
played by  the  inhabitants. 

Art.  V. — In  addition  to  Article  VI.  of  the  Convention, 
it  is  stipulated  that,  with  the  reservation  of  officers  whose 
detention  might  be  important  to  the  fate  of  arms,  and 
within  the  limits  fixed  by  the  second  paragraph  of  that 
article,  the  wounded  who  may  fall  into  the  hands  of  the 
enemy  shall  be  sent  back  to  their  country,  after  they  are 
cured,  or  sooner  if  possible,  on  condition,  nevertheless, 
of  not  again  bearing  arms  during  the  continuance  of  the 
war. 

Art.  VI. — The  boats  which,  at  their  own  risk  and  peril, 
during  and  after  an  engagement,  pick  up  the  shipwrecked 
or  wounded,  or  which,  having  picked  them  up,  convey 
them  on  board  a  neutral  or  hospital  ship,  shall  enjoy,  un- 
til the  accomplishment  of  their  mission,  the  character  of 
neutrality,  as  far  as  the  circumstances  of  the  engagement 
and  the  position  of  the  ships  engaged  will  permit. 

The  appreciation  of  these  circumstances  is  intrusted  to 
the  humanity  of  all  the  combatants.  The  wrecked  and 
wounded  thus  picked  up  and  saved  must  not  serve  agaki 
during  the  continuance  of  the  war. 

Art.  VII. — The  religious,  medical,  and  hospital  staff  of 
any  captured  vessel  are  declared  neutral,  and,  on  leaving 
the  ship,  may  remove  the  articles  and  surgical  instruments 
which  are  their  private  property. 

Art.  VIII. — The  staff  designated  in  the  preceding  arti- 
cle must  continue  to  fulfil  their  functions  in  the  captured 
ship,  assisting  in  the  removal  of  the  wounded  made  by 
the  victorious  party;  they  will  then  be  at  liberty  to  re- 
turn to  their  country,  in  conformity  with  the  second  para- 
graph of  the  first  additional  article. 


APPENDIX.  433 

The  stipulations  of  the  second  additional  article  are  ap- 
plicable to  the  pay  and  allowance  of  the  staff. 

Art.  IX.  —  The  military  hospital  ships  remain  under 
martial  law  in  all  that  concerns  their  stores;  they  become 
the  property  of  the  captor,  but  the  latter  must  not  divert 
them  from  their  special  appropriation  during  the  continu- 
ance of  the  war. 

Art.  X. — Any  merchantman,  to  whatever  nation  she 
may  belong,  charged  exclusively  with  removal  of  sick  and 
wounded,  is  protected  by  neutrality,  but  the  mere  fact, 
noted  on  the  ship's  books,  of  the  vessel  having  been  vis- 
ited by  an  enemy's  cruiser,  renders  the  sick  and  wounded 
incapable  of  serving  during  the  continuance  of  the  war.. 
The  cruiser  shall  even  have  the  right  of  putting  on  board 
an  officer  in  order  to  accompany  the  convoy,  and  thus 
verify  the  good  faith  of  the  operation. 

If  the  merchant  ship  also  carries  a  cargo,  her  neutrality 
will  still  protect  it,  provided  that  such  cargo  is  not  of  a 
nature  to  be  confiscated  by  the  belligerent. 

Art.  XI. — Wounded  or  sick  sailors  and  soldiers,  when 
embarked,  to  whatever  nation  they  belong,  shall  be  pro- 
tected and  taken  care  of  by  their  captors. 

Their  return  to  their  own  country  is  subject  to  the  pro- 
visions of  Article  VI.  of  the  Convention,  and  of  the  ad- 
ditional Article  V. 

Art.  XII. — The  distinctive  flag  to  be  used  with  the  na- 
tional flag,  in  order  to  indicate  any  vessel  or  boat  which 
may  claim  the  benefit  of  neutrality,  in  virtue  of  the  prin- 
ciples of  this  Convention,  is  a  white  flag  with  a  red  cross. 
The  belligerents  may  exercise  in  this  respect  any  mode  of 
verification  which  they  may  deem  necessary. 

Military  hospital  ships  shall  be  distinguished  by  being 
painted  white  outside,  with  green  strake. 

Art.  XIII. — The  hospital  ships  which  are  equipped  at 
the  expense  of  the  aid  societies,  recognized  by  the  govern- 
28 


434:  APPENDIX. 

ments  signing  this  Convention,  and  which  are  furnished 
with  a  commission  emanating  from  the  sovereign,  who 
shall  have  given  express  authority  for  their  being  fitted 
out,  and  with  a  certificate  from  the  proper  naval  authority 
that  they  have  been  placed  under  his  control  during  their 
fitting -out  and  on  their  final  departure,  and  that  they 
were  then  appropriated  solely  to  the  purpose  of  their  mis- 
sion, shall  be  considered  neutral,  as  well  as  the  whole  of 
their  staff.  They  shall  be  recognized  and  protected  by 
the  belligerents. 

They  shall  make  themselves  known  by  hoisting,  together 
with  their  national  flag,  the  white  flag  with  a  red  cross. 
The  distinctive  mark  of  their  staff,  while  performing  their 
duties,  shall  be  an  armlet  of  the  same  colors.  The  outer 
painting  of  these  hospital  ships  shall  be  white,  with  red 
strake. 

These  ships  shall  bear  aid  and  assistance  to  wound- 
ed and  wrecked  belligerents,  without  distinction  of  na- 
tionality. 

They  must  take  care  not  to  interfere  in  any  way  with 
the  movements  of  the  combatants.  During  and  after 
the  battle  they  must  do  their  duty  at  their  own  risk  and 
peril. 

The  belligerents  shall  have  the  right  of  controlling  and 
visiting  them;  they  will  be  at  liberty  to  refuse  their  as- 
sistance, to  order  them  to  depart,  and  to  detain  them  if 
the  exigencies  of  the  case  require  such  a  step. 

The  wounded  and  wrecked  picked  up  by  these  ships 
cannot  be  reclaimed  by  either  of  the  combatants,  and 
they  will  be  required  not  to  serve  during  the  continuance 
of  the  war. 

Art.  XIV. — In  naval  wars  any  strong  presumption  that 
either  belligerent  takes  advantage  of  the  benefits  of  neu- 
trality, with  any  other  view  than  the  interest  of  the  sick 
and  wounded,  gives  the  other  belligerent,  until  proof  to 


APPENDIX.  435 

the  contrary,  the  right  of  suspending  the  Convention  as 
regards  such  belligerent. 

Should  this  presumption  become  a  certainty,  notice  may 
be  given  to  such  belligerent  that  the  Convention  is  sus- 
pended with  regard  to  him  during  the  whole  continuance 
of  the  war. 

Art.  XV. — The  present  act  shall  be  drawn  up  in  a  sin- 
gle original  copy  which  shall  be  deposited  in  the  archives 
of  the  Swiss  Confederation. 

The  Convention  proper  was  signed  at  Geneva,  Switzer- 
land, August  2,  1864.  It  was  signed  by  representatives 
of  the  following  powers ;  i.  e.,  The  Swiss  Confederation, 
Baden,  Belgium,  Denmark,  Spain,  France,  Hesse,  Italy, 
the  Netherlands,  Portugal,  Prussia,  and  Wurtemberg.  The 
ratifications  of  the  contracting  parties  were  exchanged  at 
Geneva  on  June  22,  1865.  In  accordance  with  the  invi- 
tation contained  in  the  Ninth  Article  of  the  Convention, 
the  following  powers  acceded  to  the  Convention  at  vari- 
ous dates  between  1864  and  1880.  These  were:  Sweden, 
December  13,  1864;  Greece,  January  5-17,  1865;  Great 
Britain,  February  18, 1865;  Mecklenburg-Schwerin,  March 
9, 1865;  Turkey,  July  5,1865;  Wurtemberg,  June  2, 1866; 
Hesse,  June  22,  1866;  Bavaria,  June  30,  1866;  Austria, 
July  21,  1866;  Russia,  May  10-22,  1867;  Persia,  Decem- 
ber 5,1874;  Roumania,  November  18-30,1874;  Salvador, 
December  30,  1874;  Montenegro,  November  17-29, 1875; 
Servia,  March  24,  1876;  Bolivia,  October  16,  1879;  Chili, 
November  15,  1879;  Argentine  Republic.  November  25, 
1879;  Peru,  April  22, 1880. 

The  Additional  Articles  were  agreed  to  and  signed  at 
Geneva  on  October  20,  1868,  by  the  duly  accredited  rep- 
resentatives of  the  following  powers;  i.  e.,  Great  Britain, 
Austria,  Baden,  Bavaria,  Belgium,  Denmark,  France,  Italy, 
the  Netherlands,  the  North  German  Confederation,  Swe- 
den, Norway,  Switzerland,  Turkey,  and  Wurtemberg.  The 


436  APPENDIX. 

Convention  was  acceded  to  by  the  United  States  on 
March  1,  1882. 

In  the  published  English  text,  from  which  this  version 
of  the  Additional  Articles  is  taken,  the  following  para- 
graph appears  in  continuation  of  Article  IX.  It  is  not 
found  in  the  original  French  text  adopted  by  the  Geneva 
Conference,  October  20,  1868. 

"The  vessels  not  equipped  for  fighting  which,  during 
peace,  the  government  shall  have  officially  declared  to  be 
intended  to  serve  as  floating  hospital  ships,  shall,  however, 
enjoy  during  the  war  complete  neutrality,  both  as  regards 
stores,  and  also  as  regards  their  staff,  provided  their  equip- 
ment is  exclusively  appropriated  to  the  special  service  on 
which  they  are  employed. 

"By  an  instruction  sent  to  the  United  States  minister 
at  Berne,  January  20,  1883,  the  right  is  reserved  to  omit 
this  paragraph  from  the  English  text,  and  to  make  any 
other  necessary  corrections,  if  at  any  time  hereafter  the 
Additional  Articles  shall  be  completed  by  the  exchange  of 
the  ratifications  thereof  between  the  several  signatory  and 
adhering  powers.  The  President  of  the  United  States,  in 
his  proclamation  announcing  the  accession  of  that  power 
to  the  Geneva  Convention,  reserves  the  promulgation  of 
the  Additional  Articles  until  the  exchange  of  the  ratifica- 
tions thereof,  between  the  several  contracting  states,  shall 
have  been  effected,  and  the  said  additional  articles  shall 
have  acquired  full  force  and  effect  as  an  international 
treaty." l 

1  Statutes  of  the  United  States,  1882-1883,  pp.  126-137. 


APPENDIX  C. 

THE  DECLARATION  OF  PARIS. 

DECLARATION  RESPECTING  MARITIME  LAW,  SIGNED  B? 
THE  PLENIPOTENTIARIES  OF  GREAT  BRITAIN,  AUSTRIA, 
FRANCE,  PRUSSIA,  RUSSIA,  SARDINIA,  AND  TURKEY,  AS- 
SEMBLED IN  CONGRESS  AT  PARIS,  APRIL  16,  1856. 

THE  Plenipotentiaries  who  signed  the  Treaty  of  Paris 
of  the  30th  of  March,  1856,  assembled  in  conference, — 
Considering: 

That  Maritime  Law,  in  time  of  war,  has  long  been  the 
subject  of  deplorable  disputes; 

That  the  uncertainty  of  the  law,  and  of  the  duties  in 
such  a  matter,  gives  rise  to  differences  of  opinion  between 
neutrals  and  belligerents  which  may  occasion  serious  dif- 
ficulties, and  even  conflicts; 

That  it  is  consequently  advantageous  to  establish  a  uni- 
form doctrine  on  so  important  a  point; 

That  the  Plenipotentiaries  assembled  in  Congress  at 
Paris  cannot  better  respond  to  the  intentions  by  which 
their  governments  are  animated  than  by  seeking  to  intro- 
duce into  international  relations  fixed  principles  in  this 
respect : 

The  above-mentioned  Plenipotentiaries,  being  duly  au- 
thorized, resolved  to  concert  among  themselves  as  to  the 
means  of  attaining  this  object;  and,  having  come  to  an 
agreement,  have  adopted  the  following  solemn  declara- 
tion: 

1.  Privateering  is,  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  ex- 
ception of  contraband  of  war. 


438  APPENDIX. 

3.  Neutral  goods,  with  the  exception  of  contraband  of 
war,  are  not  liable  to  capture  under  the  enemy's  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effective, 
that  is  to  say,  maintained  by  a  force  sufficient  really  to 
prevent  access  to  the  coast  of  the  enemy. 

The  Governments  of  the  undersigned  Plenipotentiaries 
engage  to  bring  the  present  Declaration  to  the  knowledge 
of  the  states  which  have  not  taken  part  in  the  Congress 
of  Paris,  and  to  invite  them  to  accede  to  it. 

Convinced  that  the  maxims  which  they  now  proclaim 
cannot  but  be  received  with  gratitude  by  the  whole  world, 
the  undersigned  Plenipotentiaries  doubt  not  that  the  ef- 
forts of  their  governments  to  obtain  the  general  adoption 
thereof  will  be  crowned  with  full  success. 

The  present  Declaration  is  not  and  shall  not  be  binding, 
except  between  those  Powers  who  have  acceded,  or  shall 
accede  to  it. 

Done  at  Paris,  April  16, 1856. 

"  This  Declaration  of  the  six  powers  of  the  Paris  con- 
ference was  communicated  to  other  states,  and  it  was 
stated,  in  a  memorandum  of  the  French  minister  of  for- 
eign affairs  to  the  emperor,  dated  June  12,  1858,  that 
the  following  powers  had  signified  their  full  allegiance  to 
the  four  principles,  viz.:  Baden,  Bavaria,  Bremen,  Brazil, 
the  duchy  of  Brunswick,  Chili,  the  Argentine  Republic, 
the  Germanic  Confederation,  Denmark,  the  two  Sicilies, 
Equador,  the  Roman  states,  Greece,  Guatemala,  Hayti, 
Hamburg,  Hanover,  the  two  Hesses,  Ltibeck,  Mecklen- 
burg-Strelitz,  Mecklenburg-Schwerin,  Nassau,  Oldenburg, 
Parma,  the  Netherlands,  Peru,  Portugal,  Saxony,  Saxe- 
Altenburg,  Saxe  -  Coburg  -  Gotha,  Saxe-Meiningen,  Saxe- 
Weimar,  Sweden,  Switzerland,  Tuscany,  and  Wurtembcrg. 
The  executive  government  of  Uruguay  also  gave  its  full 
assent  to  all  the  four  principles^  subject  to  the  ratification 


APPENDIX.  459 

of  the  legislature.  Spain  and  Mexico  adopted  the  last 
three  as  their  own,  but,  on  account  of  the  first  article,  de- 
clined acceding  to  the  entire  Declaration.  The  United 
States  adopted  the  second,  third,  and  fourth  propositions, 
independently  of  the  first,  offering,  however,  to  adopt  that 
also,  with  the  following  amendment,  or  additional  clause, 
"  and  the  private  property  of  subjects  or  citizens  of  a  bel- 
ligerent on  the  high  seas,  shall  be  exempt  from  seizure  by 
the  public  armed  vessels  of  the  other  belligerent,  except 
it  be  contraband."  The  proposition  thus  extended  has 
been  accepted  by  Russia,  and  some  other  states  have  sig- 
nified their  approbation  of  it.  There  is  reason  to  hope 
that  all  the  maritime  nations  of  Europe  will  eventually 
adopt  the  extension.1  The  reasons  advanced  by  the  United 
States  for  declining  to  accept  the  entire  Declaration  have 
been  fully  discussed  elsewhere.8 

1  Halleck,  voL  ii.,  p.  17.  *  Ante,  p.  284. 


APPENDIX  D. 

THE  DECLARATION  OF  ST.  PETERSBURG. 

IN  December,  1868,  a  conference  of  delegates,  represent- 
ing nineteen  states,  assembled  at  St.  Petersburg,  upon  the 
invitation  of  the  Russian  government,  for  the  purpose  of 
considering  the  existing  rules  of  war.  This  body,  which 
has  become  known  as  the  International  Military  Commis- 
sion, completed  its  labors  on  November  4-16  of  the  same 
year.  As  a  result  of  its  deliberations,  the  following  Dec- 
laration was  agreed  to,  and  signed,  by  the  duly  author- 
ized representatives  of  the  states  participating  in  the  con- 
ference.1 

DECLARATION. 

"Considering  that  the  progress  of  civilization  should 
have  the  effect  of  alleviating,  as  much  as  possible,  the  ca- 
lamities of  war; 

That  the  only  legitimate  object  which  states  should  en- 
deavor to  accomplish  during  war  is  to  weaken  the  military 
force  of  the  enemy; 

That  for  this  purpose,  it  is  sufficient  to  disable  the  great- 
est possible  number  of  men; 

That  this  object  would  be  exceeded  by  the  employment 
of  arms  which  uselessly  aggravate  the  sufferings  of  dis- 
abled men,  or  render  their  death  inevitable; 

1  Austria,  Bavaria,  Belgium,  Denmark,  France,  Great  Britain,  Greece, 
Italy,  the  Netherlands,  Persia,  Portugal,  Prussia,  the  North  German  Con- 
federation, Russia,  Sweden  and  Norway,  Switzerland,  Turkey,  and  Wllr- 
temberg. 


APPENDIX. 

That  the  employment  of  such  arms  would,  therefore,  be 
contrary  to  the  laws  of  humanity; 

The  contracting  parties  engage,  mutually,  to  renounce, 
in  case  of  war  among  themselves,  the  employment,  by 
their  military  or  naval  forces,  of  any  projectile  of  less 
weight  than  four  hundred  grammes,1  which  is  explosive, 
or  is  charged  with  fulminating  or  inflammable  substances. 

They  agree  to  invite  all  the  states  which  have  not  taken 
part  in  the  deliberations  of  the  International  Military 
Commission,  assembled  at  St.  Petersburg,  by  sending  del- 
egates thereto,  to  accede  to  the  present  engagement. 

This  engagement  is  obligatory  only  upon  the  contract- 
ing or  acceding  parties  thereto,  in  case  of  war  between 
two  or  more  of  themselves;  it  is  not  applicable  with  re- 
gard to  non-contracting  powers,  or  powers  that  shall  not 
have  acceded  to  it. 

It  will  also  -cease  to  be  obligatory  from  the  moment 
when,  in  a  war  between  contracting  or  acceding  parties,  a 
non-contracting  party,  or  a  non-acceding  party,  shall  join 
one  of  the  belligerents. 

The  contracting  or  acceding  parties  reserve  to  them- 
selves the  right  to  come  to  an  understanding,  hereafter, 
whenever  a  precise  proposition  shall  be  drawn  up,  in  view 
of  future  improvements  which  may  be  effected  in  the 
armament  of  troops,  in  order  to  maintain  the  principles 
which  they  have  established,  and  to  reconcile  the  necessi- 
ties of  war  with  the  laws  of  humanity." 

1  Fourteen  ounces  avoirdupois. 


APPENDIX  E. 

THE  LAWS  OF  WAR  ON  LAND. 

RECOMMENDED  FOR  ADOPTION  BY  THE  INSTITUTE  OF  IN- 
TERNATIONAL LAW  AT  ITS  SESSION  IN  OXFORD,  SEPTEM- 
BER 9,  1880. 

AT  the  Brussels  session  of  the  Institute,  in  1879,  a  com- 
mission of  fifteen  members  was  appointed  to  prepare  a 
code,  or  manual,  of  the  rules  of  war  on  land.  The  task 
of  collecting  the  materials,  and  preparing  the  proposed 
code,  was  intrusted  to  M.  Gustave  Moynier,  of  Geneva, 
Switzerland,  the  president  of  the  International  Society  for 
the  Relief  of  the  Wounded  in  Time  of  War.  The  selec- 
tion of  M.  Moynier  for  this  purpose  was  a  most  fortunate 
one  in  every  respect;  and  he  addressed  himself  to  his  task 
with  so  much  zeal  and  intelligence  that,  in  February  of 
the  following  year,  he  was  able  to  submit  to  his  colleagues 
a  draft  of  the  proposed  manual.  The  rules  prepared  by 
M.  Moynier  were  based  upon  the  following  authorities: 

(«.)  The  Instructions  for  the  Government  of  Armies  in 
the  Field,  prepared  by  Dr.  Francis  Lieber,  at  the  request 
of  the  United  States  government. 

(b.)  The  Geneva  Convention  of  August  22, 1864. 

(c.)  The  Additional  Articles  of  the  Geneva  Convention 
of  October  20,  1868. 

(d.)  The  Declaration  of  St.  Petersburg  of  November 
4-16,  1868. 

(e.)  The  Declaration  of  Brussels  of  1874. 

(/.)  The  Official  Manuals  recently  adopted  by  the  gov- 
ernments of  France,  Russia,  and  Holland. 


APPENDIX.  44.3 

The  code  thus  prepared  was  submitted  to  the  members 
of  the  commission  for  examination  and  criticism.  As  a 
result  the  rules  were  entirely  rewritten.  A  number  of 
modifications  and  amendments,  suggested  by  the  mem- 
bers, were  embodied  in  the  work,  which  was  again  sub- 
mitted to  the  commission  for  discussion  and  final  action. 
It  was  approved  by  that  body,  and  recommended  for  ac- 
ceptance. On  September  9,  1880,  it  was  unanimously 
adopted  by  the  Institute  of  International  Law.  By  a 
later  resolution  of  the  Institute,  the  executive  committee 
was  instructed  to  bring  the  proposed  rules  to  the  notice  of 
the  different  governments  of  Europe  and  America,  with 
a  view  to  their  adoption,  as  a  standard,  to  which  their 
laws  and  regulations  on  the  subject  should  be  made  to 
conform. 

THE  LAWS  OF  WAR  ON  LAND. 

PART  FIRST. 
GENERAL  PRINCIPLES. 

1.  The  state  of  war  does  not  admit  of  acts  of  violence, 
save  between  the  armed  forces  of  belligerent  states.     In- 
dividuals who  form  no  part  of  a  belligerent  armed  force 
should  abstain  from  such  acts. 

This  rule  implies  a  distinction  between  the  individ- 
uals who  compose  the  armed  force  of  a  state  and  its 
other  citizens  or  subjects.  A  precise  definition  of  the 
term  "  armed  force  "  is  therefore  necessary. 

2.  The  armed  force  of  a  state  includes: 

1st.  The  army  proper,  or  permanent  military  estab- 
lishment, including  the  militia  and  reserve  forces. 

2d.  The  national  guard,  landstunn,  free  corps,  and 
other  bodies  which  fulfil  the  three  following  con- 
ditions; i.  e., 

(a.)  They  must  be  under  the  direction  of  responsi- 
ble chiefs. 


444:  APPENDIX. 

(5)  They  must  have  a  uniform,  or  distinguishing 
mark,  or  badge,  recognizable  at  a  distance,  and 
worn  by  individuals  composing  such  corps. 
(c.)  They  must  carry  arms  openly. 

3d.  The  crews  of  public  armed  ships,  and  other  ves- 
sels used  for  warlike  purposes. 

4th.  The  inhabitants  of  non-occupied  territory,  who, 
at  the  approach  of  the  enemy,  take  arms  openly 
and  spontaneously  to  resist  an  invader,  even  if  they 
have  not  had  time  to  organize. 

3.  Every  belligerent  armed  force  must  carry  on  its  mil- 
itary operations  in  accordance  with  the  laws  of  war. 

The  only  legitimate  end  that  a  state  may  have  in 
war  is  to  weaken  the  military  strength  of  the  enemy. 

4.  The  laws  of  war  do  not  recognize  in  belligerents  an 
unlimited  liberty  as  to  the  means  of  injuring  the  enemy. 
They  are  to  abstain  from  all  needless  severity,  as  well  as 
from  all  perfidious,  unjust,  or  tyrannical  acts. 

5.  Agreements  made  between  belligerents  during  the 
continuance  of  war,  such  as  armistices,  capitulations,  and 
the  like,  are  to  be  scrupulously  observed  and  respected. 

6.  No  invaded  territory  is  to  be  regarded  as  conquered 
until  the  end  of  the  war.     Until  that  time  the  invader  ex- 
ercises, in  such  territory,  only  a  de  facto  power,  essentially 
provisional  in  character. 


PART   SECOND. 
APPLICATION  OF  GENEEAL  PKINCIPLES. 

I.  HOSTILITIES. 
A.  RULES  OF  CONDUCT  WITH  REGABD  TO  INDIVIDUALS. 

(a.)  Inoffensive  Populations. 

The  contest  being  carried  on  by  "  armed  forces  "  only. 
'  1.  It  is  forbidden  to  deal  harshly  with  inoffensive  pop- 
ulations. 


APPENDIX.  445 

(b.)  Means  of  Injuring  the  Enemy. 

8.  It  is  forbidden, 

(a.)  To  make  use  of  poison,  in  any  form  whatever. 

(b.)  To  make  treacherous  attempts  upon  the  life  of  an 
enemy;  as,  for  example,  by  keeping  assassins  in 
par,  or  by  feigning  to  surrender. 

(c)  To  attack  an  enemy  by  concealing  the  distinctive 
signs  of  an  armed  force. 

(d.)  To  use  improperly  the  national  flag,  uniform,  or 
other  distinctive  signs  of  the  enemy;  the  flag  of 
truce,  or  the  distinctive  signs  of  the  Geneva  Con- 
vention. 

9.  It  is  forbidden, 

(a.)  To  employ  arms,  projectiles,  or  materials  of  any 
kind,  calculated  to  cause  needless  suffering,  or  to  ag- 
gravate wounds — notably  projectiles  of  less  weight 
than  four  hundred  grammes  (fourteen  ounces  avoir- 
dupois), which  are  explosive,  or  are  charged  with 
fulminating  or  explosive  substances. 

(b.)  To  kill  or  injure  an  enemy  who  has  surrendered, 
or  who  is  disabled;  or  to  declare  in  advance  that 
quarter  will  not  be  given,  even  by  those  who  do 
not  ask  it  for  themselves. 

(c.)  The  Sick  and  Wounded,  and  the  Sanitary  Service. 
The  following  provisions,  extracted  from  the  Ge- 
neva Convention,  exempt  the  sick  and  wounded, 
and  the  personnel  of  the  sanitary  service,  from 
many  of  the  needless  hardships  to  which  they  were 
formerly  exposed: 

10.  "Wounded  or  sick  soldiers  shall  be  collected  togeth- 
er and  cared  for,  to  whatever  nation  they  may  belong. 

11.  Commanders-in-chief  shall  have  power  to  deliver, 
immediately,  to  the  outposts  of  the  enemy,  soldiers  who 


446  APPENDIX. 

have  been  wounded  in  an  engagement,  when  circum- 
stances are  such  as  to  permit  this  to  be  done,  and  with 
the  consent  of  both  parties.  Those  who  are  recognized, 
after  their  wounds  are  healed,  as  incapable  of  serving, 
shall  be  sent  back  to  their  own  country.  The  others  may 
also  be  sent  back,  on  condition  of  not  again  bearing  arms 
during  the  continuance  of  the  war.  Evacuations,  together 
with  the  persons  under  whose  direction  they  take  place, 
shall  be  protected  by  an  absolute  neutrality. 

12.  Persons  employed  in  hospitals  and  ambulances,  com- 
prising the  staff  for  superintendence,  medical  service,  ad- 
ministration, transport  of  wounded,  as  well  as  chaplains, 
and  the  duly  accredited  agents  of  relief  associations,  who 
are  authorized  to  assist  the  regular  sanitary  staff,  shall 
participate  in  the  benefit  of  neutrality  while  so  employed, 
and  so  long  as  there  remain  any  wounded  to  bring  in  or 
to  succor. 

13.  The  persons   designated   in   the  preceding  article 
should,  even  after  occupation  by  the  enemy,  continue  to 
attend,  according  to  their  needs,  the  sick  and  wounded  in 
the  hospital,  or  ambulance,  to  which  they  are  attached. 

14.  When  they  request  to  withdraw,  the  commander  of 
the   occupying  troops   shall  fix  the   time   of  departure, 
which  he  shall  only  be  allowed  to  delay,  for  a  short  time, 
in  case  of  military  necessity. 

15.  Suitable  arrangements  should  be  made  to  assure  to 
neutralized  persons,  who  have  fallen  into  the  hands  of  the 
enemy,  the  enjoyment  of  suitable  salaries. 

16.  An  arm-badge  (brassard)  shall  be  worn  by  neutral- 
ized individuals,  but  the  delivery  thereof  shall  be  regu- 
lated by  military  authority. 

17.  The  commanding  generals  of  the  belligerent  powers 
should  appeal  to   the  humanity  of  the  inhabitants,  and 
should  endeavor  to  induce  them  to  assist  the  wounded, 
by  pointing  out  to  them  the  advantages  that  will  result 


APPENDIX.  44.7 

from  so  doing.     They  should  regard  as  inviolable  those 
who  respond  to  this  appeal. 

(d.)  The  Dead. 

18.  It  is  forbidden  to  rob,  or  mutilate,  the  bodies  of  the 
dead  lying  on  the  field  of  battle. 

19.  The  bodies  of  the  dead  should  not  be  buried  until 
they  have  been  carefully  examined,  and  all  articles  which 
may  serve  to  fix  their  identity,  such  as  names,  medals, 
numbers,  pocket-books,  etc.,  shall  have  been  secured.    The 
articles  thus  collected,  from  the  bodies  of  the  enemy's 
dead  should  be  transmitted  to  their  army  or  government. 

(e.)  Who  may  be  Made  Prisoners  of  War. 

20.  Individuals   who   form   a   part  of  the  belligerent 
armed  force  of  a  state,  if  they  fall  into  the  hands  of  the 
enemy,  are  to  be  treated  as  prisoners  of  war,  in  conformity 
with  articles  61-78  of  these  instructions.     The  same  rule 
is  observed  in  the  case  of  messengers  who  carry  official 
despatches  openly;  and  towards  aeronauts  charged  with 
observing  the  operations  of  an  enemy,  or  with  the  main- 
tenance of  communications  between  the  various  parts  of 
an  army,  or  theatre  of  military  operations. 

21.  Individuals  who  accompany  an  army,  but.  who  are 
not  a  part  of  the  regular  armed  force  of  the  state,  such 
as  correspondents,  traders,  sutlers,  etc.,  and  who  fall  into 
the  hands  of  the  enemy,  may  be  detained  for  such  length 
of  time  only  as  is  warranted  by  strict  military  necessity. 

(/.)  Spies. 

22.  Spies,  captured  in  the  act,  cannot  demand  to  be 
treated  as  prisoners  of  war. 

23.  An  individual  may  not  be  regarded  as  a  spy,  however, 
who,  belonging  to  the  armed  force  of  either  belligerent, 
penetrates,  without  disguise,  into  the   zone   of  military 


448  APPENDIX. 

operations  of  the  enemy.  Nor  does  the  term  apply  to 
aeronauts,  or  to  couriers,  or  messengers,  who  carry  openly, 
and  without  concealment,  the  official  dispatches  of  the 
enemy. 

24.  No  person,  charged  with  being  a  spy,  shall  be  pun- 
ished for  that  offence,  until  the  fact  of  his  guilt  shall  have 
been  established  before  a  competent  military  tribunal. 

25.  A  spy  who  succeeds  in  quitting  the  territory  occu- 
pied by  an  enemy,  incurs  no  penalty  for  his  previous  of- 
fence, should  he  at  any  future  time  fall  into  the  hands  of 
that  enemy. 

(g)  Flags  of  Truce. 

26.  The  bearer  of  a  flag  of  truce,  who,  with  proper  au- 
thority from  one  belligerent,  presents  himself  to  the  other, 
for  the  purpose  of  communicating  with  him,  is  entitled  to 
complete  inviolability  of  person. 

27.  He  may  be  accompanied  by  a  drummer  or  trumpeter, 
by  a  color-bearer,  and,  if  need  be,  by  a  guide  and  inter- 
preter, all  of  whom  shall  be  entitled  to  a  similar  inviola- 
bility of  person. 

28.  The  commander  to  whom  a  flag  is  sent,  is  not 
obliged  to  receive  the  flag  under  all  circumstances. 

29.  The  commander  who  receives  a  flag  has  a  right  to 
take  such  precautionary  measures  as  will  prevent  his 
cause  from  being  injured  by  the  presence  of  an  enemy 
within  his  lines. 

30.  If  the  bearer  of  a  flag  of  truce  abuse  the  trust  re- 
posed iu  him,  he  may  be  temporarily  detained,  and,  if  it 
be  proven  that  he  has  taken  advantage  of  his  position  to 
abet  a  treasonable  act,  he  forfeits  his  character  of  invio- 
lability. 


APPENDIX.  449 

B.  RULES  OP  CONDUCT  •WITH  REGARD  TO  THINGS. 
(a.)  Means  of  Injuring  the  Enemy. — Bombardments. 

Certain  precautions  are  made  necessary  by  the  rule 
that  a  belligerent  must  abstain  from  useless  severity. 
In  accordance  with  this  principle, 

31.  It  is  forbidden, 

(a.)  To  pillage,  even  places  taken  by  assault. 

(b.)  To  destroy  public  or  private  property,  unless 

such  destruction  be  commanded  by  urgent  military 

necessity, 
(c.)  To  attack,  or  bombard,  open  or  undefended  towns. 

32.  The  commander  of  an  attacking  force,  save  in  cases 
of  open  assault,  shall,  before  undertaking  a  bombardment, 
make  due  effort  to  give  notice  of  his  intention  to  the  local 
authorities. 

33.  In  case  of  bombardment  all  needful  measures  shall 
be  taken  to  spare,  if  it  be  possible  to  do  so,  buildings  de- 
voted to  religion  and  charity,  to  the  arts  and  sciences, 
hospitals,  and  depots  of  sick  and  wounded.     This  on  con- 
dition, however,  that  such  places  be  not  made  use  of,  di- 
rectly or  indirectly,  for  purposes  of  defence. 

34.  It  is  the  duty  of  the  besieged  to  designate  such 
buildings  by  suitable  marks  or  signs,  indicated,  in  ad- 
vance, to  the  besieger. 

(b.)  Sanitary  Establishments. 

The  arrangements  for  the  relief  of  the  wounded, 
which  are  made  the  subject  of  article  10  et  seq.  of  the 
Geneva  Convention,  would  be  inadequate  to  their  pur- 
pose, were  not  sanitary  establishments  granted  equal 
protection.  Hence,  in  accordance  with  the  rules  of  the 
Geneva  Convention, 

85.  Ambulances  and  military  hospitals  are  recognized 
29 


450  APPENDIX. 

as  neutral,  and,  as  such,  are  to  be  protected  by  belligerents, 
so  long  as  any  sick  or  wounded  remain  therein. 

36.  The  same  rule  applies  to  buildings,  or  parts  of  build- 
ings, in  which  the  sick  or  wounded  are  gathered  together, 
or  cared  for. 

37.  The  neutrality  of  hospitals  and  ambulances  ceases 
if  they  are  guarded  by  a  military  force.     This  does  not 
preclude  the  presence  of  an  adequate  police  force. 

38.  As  the  equipment  of  military  hospitals  remains  sub- 
ject to  the  laws  of  war,  persons  attached  to  such  hospitals 
cannot,  in  withdrawing,  carry  away  any  articles  but  such 
as  are  their  private  property.     Under  the  same  circum- 
stances, an  ambulance  shall,  on  the  contrary,  retain  its 
equipment. 

39.  Under  the  circumstances  foreseen  in  the  above  para- 
graphs, the  term  ambulance  is  applied  to  field  hospitals,  and 
other  temporary  establishments,  which  follow  the  troops 
on  the  field  of  battle  to  receive  the  sick  and  wounded. 

40.  A  distinctive  and  uniform  flag  is  adopted  for  am- 
bulances, hospitals,  and  evacuations.     It  bears  a  red  cross 
on  a  white  ground.     It  must,  on  all  occasions,  be  accom- 
panied by  the  national  flag. 

II.  OCCUPIED  TERRITORY. 
A.  DEFINITION. 

41.  Territory  is  regarded  as  occupied  when,  as  the  con- 
sequence of  its  invasion  by  the  enemy's  forces,  the  state 
from  which  it  has  been  taken  has  ceased,  in  fact,  to  exer- 
cise there  its  regular  authority,  and  the  invading  state, 
alone,  finds  itself  able  to  maintain  order  therein.     The 
limits  within  which  this  state  of  affairs  exists  determine 
the  extent  and  duration  of  the  occupation. 

B.  RULES  OP  CONDUCT  WITH  RESPECT  TO  PERSONS. 

42.  It  is  the  duty  of  the  occupying  military  authority 


APPENDIX. 

to  inform  the  inhabitants,  at  the  earliest  practicable  mo- 
ment, of  the  powers  that  he  exercises,  as  well  as  to  define 
the  limits  of  the  occupied  territory. 

43.  The  occupying  authority  should  take  all  due  and 
needful  measures  to  assure  order  and  public  tranquillity. 

44.  To  that  end  the  invader  should  maintain  the  laws 
in  force  in  the  territory  in  time  of  peace,  and  should  not 
modify,  suspend,  or  replace  them,  unless  it  becomes  abso- 
lutely necessary  to  do  so. 

45.  The  administrative  officials  and  civil  employees,  of 
every  grade,  who  consent  to  continue  in  the  performance 
of  their  duties,  should  be  supported  and  protected  by  the 
occupying   authority.      Their   appointments   are   always 
revocable,  and  they  have  the  right  to  resign  their  places 
at  any  time.     They  should  be  subjected  to  penalties  only 
when  they  fail  to  perform  duties  freely  accepted  by  them, 
and  should  be  given  over  to  justice  only  when  they  have 
betrayed  them. 

46.  In  case  of  urgency,  the  invader  may  demand  the 
co-operation  of  the  inhabitants,  to  enable  him  to  provide 
for  the  necessities  of  local  administration. 

47.  The  population  of  an  invaded  district  cannot  be 
compelled  to  swear  allegiance  to  the  hostile  power;  but 
individuals  who  commit  acts  of  hostility  against  the  occu- 
pying authority  are  punishable. 

48.  The  inhabitants  of  an  occupied  territory,  who  do 
not  submit  to  the  orders  of  the  occupying  authority,  may 
be  compelled  to  do  so.     The   invader,  however,  cannot 
compel  the  inhabitants  to  assist  him  in  his  works  of  at- 
tack or  defence,  or  to  take  part  in  military  operations 
against  their  own  country. 

49.  Family  honor  and  rights,  the  lives  of  individuals, 
as  well  as  their  religious  convictions,  and  the  right  of  re- 
ligious worship  should  be  respected. 


452  APPENDIX. 

C.  RULES  OF  CONDUCT  WITH  REGARD  TO  PROPERTY. 

(a.)  Public  Property. 

Although  the  authority  of  the  invader  replaces  that 
of  the  government  of  the  occupied  territory,  his  power 
is  not  absolute.  So  long  as  the  fate  of  the  territory 
remains  in  suspense — that  is,  until  the  peace — the  in- 
vader is  not  free  to  dispose  of  property  which  still  be- 
longs to  the  enemy,  and  which  is  not  of  direct  use  to 
him  in  his  military  operations.  From  these  principles 
the  following  rules  are  deduced: 

50.  The  occupying  authority  may  seize  only  the  cash, 
public  funds,  and  bills  due  or  transferable,  belonging  to 
the  state  in  its  own  right,  depots  of  arms  and  supplies, 
and,  in  general,  the  movable  property  of  the  state,  of  such 
character  as  to  be  useful  in  military  operations. 

51.  Means  of  transportation   (railways,  boats,  etc.),  as 
well  as  telegraph  lines  and  landing  cables,  can  only  be  ap- 
propriated to  the  use  of  the  invader.     Their  destruction 
is  forbidden,  unless  it  be  commanded  by  military  neces- 
sity.    They  are  to  be  restored,  at  the  peace,  in  the  condi- 
tion in  which  they  are  at  that  time. 

52.  The  invader  can  only  act  in  the  capacity  of  a  pro- 
visional administrator  in  respect  to  real  property;  such 
as  buildings,  forests,  agricultural  establishments,  etc.,  be- 
longing to  the  enemy's  state.     He  should  protect  these 
properties  and  see  to  their  maintenance. 

53.  The  property  of  communes,  and  that  of  establish- 
ments devoted  to  religious  worship,  and  to  the  arts  and 
sciences,  cannot  be  seized.     All  destruction,  or  intentional 
defacement  of  such  establishments,  of  historic  monuments 
or  archives,  or  of  works  of  science  or  art,  is  formally  pro- 
hibited, save  when  commanded  by  urgent  military  neces- 
.sity. 


APPENDIX.  453 

(b.)  Private  Property. 

If  the  powers  of  the  invader  are  limited  with  respect 
to  the  public  property  of  the  enemy's  state,  icith  greater 
reason  are  they  limited  icith  respect  to  the  private 
property  of  individuals. 

54.  Private  property,  whether  belonging  to  individuals 
or  corporations,  is  to  be  respected,  and  can  be  confiscated 
only  under  the  limitations  contained  in  the  following  ar- 
ticles. 

55.  Means  of  transportation  (railways,  boats,  etc.),  tele- 
graphs, factories  of  arms  and  munitions  of  war,  although 
belonging  to  private  individuals  or  'corporations,  may  be 
seized  by  an  invader,  but  must  be  restored  at  peace;  if 
possible,  with  suitable  indemnities. 

56.  Impositions  in  kind  (requisitions),  levied  upon  com- 
munes, or  the  residents  of  invaded  districts,  should  bear  di- 
rect relation  to  the  generally  recognized  necessities  of  war, 
and  should  be  in  proportion  to  the  resources  of  the  district. 
Requisitions  can  only  be  made,  or  levied,  with  the  author- 
ity of  the  commanding  officer  of  the  occupied  district. 

57.  The  invader  may  levy,  in  the  way  of  dues  and  im- 
posts, only  such  as  are  already  established  for  the  benefit 
of  the  state  revenues.     He  employs  them  to  defray  the 
expenses  of  administration  of  the  occupied  territory,  con- 
tributing in  the  same  proportion  in  which  the  legal  gov- 
ernment was  bound. 

58.  The  invader  cannot  levy  extraordinary  contributions 
of  money,  save  as  an  equivalent  for  fines,  or  imposts  not 
paid,  or  for  payments  not  made  in  kind.     Contributions 
in  money  can  only  be  imposed  by  the  order,  and  upon  the 
responsibility,  of  the  general-in-chief,  or  that  of  the  supe- 
rior civil  authority  established  in  the  occupied  territory; 
and  then,  as  nearly  as  possible,  in  accordance  with  the 
rule  of  apportionment  and  assessment  of  existing  imposts. 


454  APPENDIX. 

59.  In  the  apportionment  of  burdens  relating  to  the 
quartering  of  troops,  and  in  the  levying  of  requisitions 
and  contributions  of  war,  account  is  to  be  made  of  the 
charitable  zeal  displayed  by  the  inhabitants  in  behalf  of 
the  wounded. 

60.  Impositions  in  kind,  when  they  are  not  paid  for  in 
cash,  and  contributions  of  war,  are  authenticated  by  re- 
ceipts.   Measures  should  be  taken  to  assure  the  regularity 
and  bonafide  character  of  these  receipts. 

III.  PRISONERS  OF  WAR. 

The  confinement  of  prisoners  of  war  is  not  in  the 
nature  of  a  penalty  for  crime;  neither  is  it  an  act 
of  vengeance.  It  is  a  temporary  detention  only,  en- 
tirely without  penal  character.  In  tlie  following  pro- 
visions, therefore,  regard  has  been  had  to  the  consider- 
ation due  them  as  prisoners,  and  to  the  necessity  of 
their  secure  detention. 

61.  Prisoners  of  war  are  the  prisoners  of  the  captor's 
government,  and  not  of  the  individuals  or  corps  who  capt- 
ured them. 

62.  They  are  subject  to  the  laws  and  regulations  in 
force  in  the  army  of  the  enemy. 

63.  They  must  be  treated  with  humanity. 

64.  All  articles  in  their  personal  possession,  arms  ex- 
cepted,  remain  their  private  property. 

65.  Every  prisoner  of  war  is  obliged  to  disclose,  when 
duly  interrogated  upon  the  subject,  his  true  name  and 
grade.     Should  he  fail  to  do  so,  he  may  be  deprived  of 
all,  or  a  part,  of  the  privileges  accorded  to  prisoners  of 
his  rank  and  station. 

66.  Prisoners  of  war  may  be  confined  in  towns,  for- 
tresses, camps,  or  other  places,  with  an  obligation  not  to 
go  beyond  certain  specific  limits;  but  they  may  only  be 
imprisoned  as  an  indispensable  measure  of  security. 


APPENDIX.  455 

67.  Every  act  of  insubordination,  on  the  part  of  a  pris- 
oner of  war,  authorizes  the  resort  to  suitable  measures  of 
severity  on  the  part  of  the  government  in  whose  hands 
he  is. 

68.  Prisoners  of  war  attempting  to  escape  may,  after 
having  been  summoned  to  halt  or  surrender,  be  fired  upon. 
If  an  escaped  prisoner  be  recaptured,  before  being  able 
to  rejoin  his  own  army  or  to  quit  the  territory  of  his  cap- 
tor, he  is  only  liable  to  disciplinary  penalties;  or  he  may 
be  subjected  to  a  more  rigorous  confinement.     If,  after 
having  successfully  effected  his  escape,  he  is  again  made 
a  prisoner,  he  incurs  no  penalty  for  his  previous  escape. 
If,  however,  the  prisoner  so  recaptured,  or  retaken,  has 
given  his  parole  not  to  attempt  to  escape,  he  may  be  de- 
prived of  his  rights  as  a  prisoner  of  war. 

69.  The   government  having  prisoners   of  war  in  its 
hands,  is  obliged  to  support  them.     If  there  be  no  agree- 
ment between  the  belligerents  upon  this  point,  prisoners 
of  war  are  placed,  in  all  matters  regarding  food  and  cloth- 
ing, upon  the  peace  footing  of  the  troops  of  the  state 
which  holds  them  in  captivity. 

70.  Prisoners  cannot  be   compelled  to  take  any  part 
whatsoever  in  operations  of  war.     Neither  can  they  be 
compelled  to  give  information  concerning  their  army  or 
country. 

71.  They  may  be  employed  upon  public  works  that 
have  no  direct  connection  with  the  captor's  military  op- 
erations; provided,  however,  that  such  labor  is  not  detri- 
mental to  health,  nor  humiliating  to  their  military  rank, 
if  they  belong  to  the  army;  or  to  their  official  or  social 
position,  if  they  are   civilians,  not  connected  with  any 
branch  of  the  military  service. 

72.  In  the  event  of  their  being  authorized  to  engage  in 
private  industries,  their  pay  for  such  services  may  be  col- 
lected by  the  authority  in  charge  of  them.     The  sums  so 


456  APPENDIX. 

received  may  be  employed  in  bettering  their  condition, 
or  may  be  paid  to  them,  at  their  release,  subject  to  deduc- 
tion, if  that  course  be  deemed  expedient,  of  the  expense 
of  their  maintenance. 

IV.  TERMINATION  OF  CAPTIVITY. 

The  right  of  detaining  individuals  in  captivity  ex- 
ists only  during  the  continuance  of  hostilities.   Hence : 

73.  The  captivity  of  prisoners  of  war  ceases,  as  a  matter 
of  right,  at  the  conclusion  of  peace;  but  their  liberation 
is  then  regulated  by  agreement  between  the  belligerents. 

74.  Captivity  also  ceases,  in  so  far  as  sick  or  wounded 
prisoners  are  concerned,  so  soon  as  they  are  found  to  be 
unfit  for  military  service.   It  is  the  duty  of  the  captor,  un- 
der such  circumstances,  to  send  them  back  to  their  country. 

75.  During  the  continuance  of  hostilities,  prisoners  of 
war  may  be  released  in  accordance  with  cartels  of  ex- 
change, agreed  upon  by  the  belligerents. 

76.  Without  formal  exchange,  prisoners  may  be  liber- 
ated on  parole,  provided  they  are  not  forbidden,  by  their 
own  government,  to  give  paroles.     In  such  a  case  they 
are  obliged,  as  a  matter  of  military  honor,  to  perform, 
with  scrupulous  exactness,  the  engagements  which  they 
have  freely  undertaken,  and  which  should  be  clearly  spec- 
ified.    On  its  part,  their  own  government  should  not  de- 
mand, or  accept  from  them,  any  service  contrary  to,  or 
inconsistent  with,  their  plighted  word. 

77.  A  prisoner  of  war  cannot  be  constrained  to  accept 
a  release  on  parole.     For  a  similar  reason,  the  enemy's 
government  is  not  obliged  to  accede  to  the  demand  of  a 
prisoner  of  war  to  be  released  on  parole. 

78.  Every  prisoner  of  war,  liberated  on  parole,  who  is 
recaptured  in  arms  against  the  government  to  which  he 
has  given  such  parole,  may  be  deprived  of  his  rights  and 
privileges  as  a  prisoner  of  war;  unless,  since  his  liberation, 


APPENDIX.  457 

he  has  been  included  in  an  unconditional  exchange  of 
prisoners. 

V.  TKOOPS  INTERNED  IN  NEUTEAL  TERRITORY. 

It  is  universally  admitted  that  a  neutral  state  can- 
not, without  compromising  its  neutrality,  lend  aid  to 
either  belligerent,  or  permit  them  to  make  use  of  its 
territory.  On  the  other  hand,  considerations  of  hu- 
manity dictate  that  asylum  should  not  be  refused  to 
individuals  who  take  refuge  in  neutral  territory  to  es- 
cape death  or  captivity.  From  these  principles  the 
following  provisions  are  deduced.  They  are  calcu- 
lated to  reconcile,  to  some  extent,  the  opposing  interests 
involved. 

79.  It  is  the  duty  of  a  neutral  state,  within  whose  terri- 
tory commands,  or  individuals,  have  taken  refuge,  to  in- 
tern them  at  points  as  far  removed  as  possible  from  the 
theatre  of  war.     It  should  pursue  a  similar  course  toward 
those  who  make  use  of  its  territory  for  warlike  opera- 
tions, or  to  render  military  aid  to  either  belligerent. 

80.  Interned  troops  may  be  guarded  in  camps,  or  for- 
tified places.     The  neutral  state  decides  whether  officers 
are  to  be  released,  on  parole,  by  taking  an  engagement 
not  to  quit  neutral  territory  without  authority. 

81.  In  the  event  of  there  being  no  agreement  with  the 
belligerents  concerning  the  maintenance  of  interned  troops, 
the  neutral  state  shall  supply  them  with  food  and  cloth- 
ing, and  the  immediate  aid  demanded  by  humanity.     It 
also  takes  such  steps  as  it  deems  necessary  to  care  for  the 
arms  and  other  public  property  brought  into  its  territory 
by  the  interned  troops.     When  peace  has  been  concluded, 
or  sooner,  if  possible,  the  expenses  occasioned  by  the  in- 
ternment are  reimbursed  to  the  neutral  state,  by  the  bel- 
ligerent state  to  whom  the  interned  troops  belong. 

82.  The  provisions  of  the  Geneva  Convention  of  August 


458  APPENDIX. 

22,  1864  (Articles  10-18,  35-40,  59  and  74  above  given), 
are  applicable  to  the  sanitary  staff,  as  well  as  to  the  sick 
and  wounded,  who  take  refuge  in,  or  are  conveyed  to, 
neutral  territory. 

83.  Evacuations  of  sick  and  wounded,  not  prisoners  of 
war,  may  pass  through  neutral  territory,  provided  the 
personnel  and  material  accompanying  them  are  exclusive- 
ly sanitary.  It  is  the  duty  of  the  neutral  state,  through 
whose  territory  the  evacuation  is  made,  to  take  such 
measures  of  safety  and  necessary  control  as  it  may  deem 
necessary  to  the  rigorous  performance  of  its  neutral  duty. 


PART  THIRD. 
PENAL   SANCTION. 

If  any  of  the  foregoing  rules  be  violated,  the  offend- 
ing parties  should  be  punished,  after  a  judicial  hear- 
ing, by  the  belligerent  in  whose  hands  they  are. 

84.  Offenders  against  the  laws  of  war  are  liable  to  the 
punishments  specified  in  the  penal,  or  criminal,  law. 

This  mode  of  repression,  hoicever,  is  only  applicable 
when  the  person  of  the  offender  can  be  secured.  In  the 
contrary  case,  the  criminal  law  is  powerless,  and,  if  the 
injured  party  deem  the  misdeed  so  serious  in  character 
as  to  make  it  necessary  to  recall  the  enemy  to  a  respect 
for  law,  no  other  resource  remains  than  a  resort  to  re- 
prisals. Reprisals  are  an  exception  to  the  general 
rule  of  equity,  that  an  innocent  person  ought  not  to 
suffer  for  the  guilty.  They  are  also  at  variance  with 
the  rule  that  each  belligerent  should  conform  to  the 
rules  of  war,  without  reciprocity  on  the  part  of  the  en- 
emy. This  necessary  rigor,  however,  is  modified,  tc 
some  extent,  by  the  following  restrictions: 

85.  Reprisals  are  formally  prohibited  in  all  cases  in 
which  the  injury  complained  of  has  been  repaired. 


APPENDIX.  459 

86.  In  all  cases  of  serious  importance,  in  which  reprisals 
appear  to  be  absolutely  necessary,  they  shall  not  exceed, 
in  kind  or  degree,  nor  in  their  mode  of  application,  the 
exact  violation  of  the  law  of  war  committed  by  the  ene- 
my. They  can  only  be  resorted  to  with  the  express  au- 
thority of  the  general-in-chicf.  They  must  conform,  in 
all  cases,  to  the  laws  of  humanity  and  morality. 


This  Manual  is  the  latest,  as  it  is  in  many  respects  the 
best,  of  the  many  attempts  that  have  been  made  to  frame 
a  body  of  rules  for  the  guidance  of  belligerents  in  war. 
In  common  with  those  that  have  preceded  it,  it  possesses 
certain  advantages  which  may  be  summarized  as  follows: 

(a.)  It  expresses,  with  great  accuracy  and  precision,  the 
principles  of  International  Law  that  underlie  the  rules  of 
war;  and  states  those  rules,  in  considerable  detail,  as  they 
existed  at  the  date  of  its  preparation. 

(b.)  In  stating  them,  it  places  upon  each  the  most  favor- 
able construction  that  it  is  capable  of  receiving — erring, 
if  at  all,  upon  the  side  of  humanity. 

(c.)  Its  publication  tends,  to  a  certain  extent,  to  popular- 
ize knowledge  upon  a  subject  about  which  too  little  is  known. 

(d.)  By  drawing  public  attention  to  the  existing  meth- 
ods of  civilized  war,  it  emphasizes  its  inevitable  hardships 
and  severities,  encourages  investigation  and  criticism,  and 
affords  an  opportunity  for  their  further  amendment  in 
the  direction  of  greater  humanity. 

On  the  other  hand,  it  is  open  to  serious  objections: 

(a.)  No  code,  or  manual,  can  cover  or  include  all  the 
cases,  or  novel  combinations  of  circumstances,  that  are 
likely  to  arise  in  war. 

(5.)  The  interests  of  modern  states,  and  so  their  military 
policies,  are  so  diverse  as  to  make  it  impossible  for  any 
rule,  or  set  of  rules,  to  apply  to  all  states,  or  even  to  any 


460  APPENDIX. 

considerable  number  of  them,  in  the  conduct  of  their  mil- 
itary operations.  This  is  illustrated  by  the  divergent, 
and  in  many  cases  opposing,  views  upon  the  subjects  of 
occupied  territory,  the  employment  of  levees  en  masse, 
and  the  like,  which  are  held  by  states  of  which  England 
and  Russia  are  the  extreme  types. 

(c.)  The  rules  are  applied,  in  time  of  war,  by  the  com- 
manding generals  of  opposing  armies  in  the  field.  When- 
ever a  question  of  doubtful  application  arises,  the  rules 
are  interpreted  and  applied  to  the  case  in  point — not  by  a 
dispassionate  tribunal — but  by  a  party  to  the  issue.  His 
decision  must,  from  the  necessities  of  the  case,  be  based 
upon  a  partial  and  one-sided  representation  of  the  facts 
in  issue;  and  his  ruling  can  hardly  fail  to  be  influenced, 
to  an  appreciable  extent,  by  considerations  of  military 
policy  and  self-interest. 

(d.)  An  invariable  defect  in  most  endeavors  of  this 
kind  is  that  they  attempt  too  much,  and  undertake  to 
frame  rules  upon  subjects  as  to  which  there  is,  as  yet,  no 
unanimity  of  opinion  among  modern  states.  A  rule  of 
International  Law,  to  receive  general  acceptance,  must  be 
based  upon  general  consent.  If  the  policy  of  states  varies 
as  to  a  particular  usage,  it  is  impossible  to  frame  a  rule, 
as  to  that  usage,  which  all  states  will  agree  to  observe. 
The  rules  of  the  Geneva  Convention,  and  those  of  the 
Declaration  of  St.  Petersburg,  have  received  practically 
unanimous  recognition,  because  they  had  to  do  with  prac- 
tices concerning  which  all  states  were  of  the  same  opinion. 
The  views  held  by  different  states  as  to  the  rights  of  mil- 
itary occupation  and  the  government  of  occupied  terri- 
tory, and  upon  the  subjects  of  requisitions  and  contribu- 
tions of  war,  are  so  diverse,  as  to  make  it  impossible  to 
formulate  a  rule  by  which  any  considerable  number  of 
them  will  agree  to  be  bound  in  the  conduct  of  their  mil- 
itary operations. 


INDEX. 


Adjustment  of  international  disputes, 

186. 

Alabama,  case  of  the,  315. 
Alabama  Claims,  settlement  of,  327. 
Aliens,  definition  of  the  term,  112. 
Classification  of,  112. 
Treatment  of,  in  former  times,  1 10. 
"  in  modern  times,  113. 

Restrictions  upon,  115. 
Allegiance,  100,  101. 

Doctrine  of  indelible,  110. 
Change  of,  how  effected,  100. 
(See  Naturalization,  Expatria- 
tion.) 
Alliances,  175. 

Offensive  and  defensive,  176. 
Equal  and  unequal,  176. 
Ambassadors,  141. 

Origin  of  the  modern  institution, 

141. 

The  right  of  legation,  142. 
Eight  of  sending  and  receiving, 

142. 

Duty  to  receive,  not  absolute,  142. 
Classification  of  diplomatic  agents, 

143. 

Rank  of  ambassadors,  144. 
Titles  of,  145. 
Manner  of  sending  and  receiving, 

146. 

Reception  of  ambassadors,  146. 
Duties  of  ambassadors,  147. 
Diplomatic  language,  147. 
Functions  of,  how  suspended  and 

terminated.  148. 

Privileges  and  immunities  of  am- 
bassadors, 149. 

The  fiction  of  exterritoriality,  150. 
Immunity  from  criminal  jurisdic- 
tion, 151. 

Immunity  from  civil  jurisdiction, 
151. 


Immunity  of  hotel,  152. 
Privilege    of   religious    worship, 

153. 
Exemption   from   customs   dues, 

etc.,  153. 

Amicable  adjustment  of  disputes,  186. 
Arbitration,  191. 

A  means  of  adjusting  international 

disputes,  191. 
A  preliminary  treaty  necessary, 

191. 

Character  and  composition  of  tri- 
bunal, 191. 
Rules  of  procedure,  how  provided, 

192. 
Decision  of  tribunal,  its  character, 

192. 

Its  binding  force,  192. 
Validity  of,  192. 
Asylum,  right  of,  in  war,  299. 

Balance  of  power,  77. 

Interference  in  behalf  of,  77. 
De  Marten's  statement  of  the  prin- 
ciple of,  80. 
Vattel's  statement  of  the  principle 

of,  81. 
Senior's  limitation  of  the  right  of 

interference,  81. 
Belligerents,  200. 

Intercourse  of,  in  war,  237. 
Obligation  of,  to  respect  the  rules 

of  war,  200. 

Binding  force  of  treaties,  169. 
Bliss,  James,  case  of  the,  188. 
Blockades,  366. 

Right  of,  a  belligerent  right,  366. 
What  places  may  be  blockaded, 

366. 

Valid  blockades,  367. 
How  established  and  notified,  367. 
(a.)  By  proclamation,  368. 


462 


INDEX. 


(6.)  By  notification  and  endorse- 
ment, 368. 

(c.)  By  proclamation  and  noti- 
fication, 368. 
Penalty  for  breach  of  blockade, 

370. 
Duration  of,  371. 

"  in  breach  by  egress, 

372. 

Termination  of  blockades,  372. 
Pacific  blockades,  373. 
Booty,  230. 

Canon  law,  origin  of,  11. 

Capitulations,  239. 

Captured  property  in  war,  230. 

On  land   (see  Contributions  and 

Requisitions),  230. 
On  the  sea  (see  Maritime  Capt- 
ure), 259. 
Cartels,  239. 
Causes  of  war,  201. 
Ceremonial — 

Diplomatic,  89,  92, 146. 
Maritime,  87. 
Military,  91. 

Observance  of  national  anniver- 
saries, 90. 

Visits  of  ceremony,  91. 
International  agreement  as  to  sa- 
lutes, 90. 

Charges  d' Affaires,  145. 
Chesapeake,  case  of  the,  307. 
Chivalry,  effect  of  the  institution  upon 

International  Law,  10. 
Citizen,   definition    of  the    term    (see 

Subject),  98. 

Classification  of  citizens.  99. 
(«.)  Native-born,  99. 
(b.)  Naturalized,  100. 
Duty  of  allegiance,  98. 
Right  to  protection,  98. 
Citizenship,  how  determined,  98. 

How  distinguished  from  domicile, 

117. 

Civil  wars,  199. 

Closed  seas,  jurisdiction  over,  37. 
Combatants,  232. 
Comity,  duty  of,  94. 
Confederations,  32. 

Test  of  the  relative  strength  of, 

32. 

Rule  for  determining  the  strength 
of,  33. 


Conflict  of  international  rights,  186. 
Methods  of  adjustment,  186. 
(«.)   Amicable  adjustment  by 

interested  states,  186. 
Duty  of  moderation,  189. 
(b.)  Mediation,  190. 
(c.)  Arbitration,  191. 
Mediation  and   arbitration  com- 
pared, 192. 

Conflict   of  laws    (see   Private  Inter- 
national Law),  132. 
Consolato  del  Mare,  6. 
Constitutional  governments,  29. 
Consular  jurisdiction,  161. 

How  obtained,  limits  upon,  161. 
Amount  of,  exercised  by  United 

States  consuls,  162. 
Consuls,  154. 

Origin  of  the  consular  function, 

154. 

Classification  of  consular  employ- 
ees, 157. 
Duties  of,  156. 

Privileges  and  immunities  of,  157. 
Method  of  appointment,  the  exe- 
quatur, 157,  159. 
Method   of  appointment   in   the 

United  States,  160. 
Withdrawal  of  exequatur,  159. 
Continuous  voyages  (see  Contraband), 

351. 
Contraband  of  war,  336. 

Origin  of  the  practice,  336. 

Definition  of,  338. 

Rules  of.  affect  chiefly  the  acts  ot 

individuals,  339. 
Character    of   contraband    trade, 

339. 
Rules  for  determining  contraband 

of  war,  340. 
Difficulty  of  framing,  cause  of 

the  difficulty,  340. 
Question  decided  by  prize  courts, 

341. 

Field's  proposed  rule,  341. 
Rules  of  the  Supreme  Court  of 

the  United  States,  342. 
Application  of,  343. 
Destination  of  ships  and  goods, 

how  determined,  345. 
Doctrine   of  continuous  voyages 
(see  cases  of  the  Springbok  and 
Peterhoff),  345. 
Difference  between  old  and  new 


INDEX. 


463 


rules,   probable     consequences, 
352. 
Penalty    for    contraband    trade, 

353. 

Rule  as  to  contraband  goods,  353. 
Rule  as  to  the  ship,  354. 
Rule  as  to  innocent  cargo,  354. 
Release  of  neutral  ship  upon  sur- 
rendry    of    contraband    cargo, 
355. 

Duration  of  penalty,  354. 
Neutral  conveyance  of  enemy's 

troops  and  despatches,  356. 
Definition  of  terms,  356. 
Destination  important,  357. 
Cases  of  the  Friendship  and  Greta, 

357. 

Presumption  in  the  case  of  hos- 
tile despatches,  358. 
Despatches  of  a  belligerent  gov- 
ernment to  its  ambassadors  and 
consuls  in  neutral  states.  358. 
Conveyance  of  mails  in  the  ordi- 
nary course  of  business,  359. 
Case  of  the  Trent,  360. 
Occasional  contraband,  362. 
Pre-emption,  364. 
Contributions  of  war,  230. 
Convoy,  383. 
Council  of  Lyons,  13. 
Councils  of  the  Church  (see  (Ecumen- 
ical Councils),  13. 
Crimes — 

Committed   in   foreign   territory, 

jurisdiction  over,  125. 
Committed  on  the  high  seas,  ju- 
risdiction over,  125. 
Criminal  jurisdiction,  right  of,  123. 

Views    held    as    to,   by    various 

states,  124. 
Custom,  as  a  source  of  International 

Law,  25. 
Customs  of  Amsterdam,  7. 

Decisions — 

Of    boards    of   arbitration    as    a 
source  of  International  Law,  20. 
Of  courts  as  a  source  of  Interna- 
tional Law,  23. 
Declaration — 

Of  Paris,  284.     (For  text  of  the 
Declaration,  see  Appendix   C, 

437.) 
Of  St.  Petersburg,  440. 


Declaration  of  war — 

Ancient  and  modern  usage  with 

respect  to,  203. 

right  of,  in  whom  vested.  201. 
Despatches  of  enemy,  carriage  of,  by 

neutral,  356. 
Definition  of,  357. 
Destination  of,  important  in  de- 
termining liability  of  carrier, 
357. 
Destination,  in  contraband  trade,  how 

determined,  345. 
Diplomatic  agents  (see  Ambassadors), 

141. 
Correspondence  of,  as  a  source  of 

International  Law,  19. 
Language,  147. 
Divisions  of  International  Law.  24. 

1.  The   natural  law   of  nations, 
25. 

2.  The  positive  law  of  nations, 

25. 
(a.)  The  conventional  law  of 

nations,  25. 

(6.)  The  customary  law  of  na- 
tions, 25. 
Domicile,  116. 

Distinction  between  domicile  and 

citizenship,  117. 
Rules  of,  118. 

Effects  of  a  state  of  war,  205. 
Equality  of  states,  31. 
Exchange  of  prisoners  of  war,  235. 
Exterritoriality,  59, 150. 

(a.)  Application  to  ambassadors, 

67, 150. 

(b.)  Application  to  armies  in  tran- 
sit, 63. 
(c.)  Application  to  consuls  in  the 

East,  67. 
(A)  Application  to  ships  of  war, 

60. 
(e.)  Application  to  sovereigns,  etc., 

65. 
Extradition,  123, 126. 

Difference  of  view  as  to  criminal 

jurisdiction,  124. 
Methods  of,  126. 
Conditions  of,  127. 
Treaties  of  the  United  States  on 

the  subject  of,  128. 
Interstate,  in  the  United  States, 
129. 


464 


INDEX. 


Feudal  system,  8. 

Effects  of,  on  growth  of  Interna- 
tional Law,  10. 
Flags  of  truce,  238. 
Florida,  case  of  the,  308. 
Foreign  judgments,  effects  of,  138. 

Conditions  respecting,  139. 
Franconia,  case  of  the,  41. 
"  Free  ships,  free  goods,"  origin  of  the 

rule  of,  281. 
Friendship,  case  of  the,  357. 

Geneva  arbitration,  327. 
Government  defined,  28. 
Forms  of,  29. 
Right  of  a  state  to  change  form 

of,  33. 

Greeks, International  Law  among  the.3. 
Greta,  case  of  the,  357. 
Grotius,  influence  of,  upon  the  science 

of  International  Law,  16. 
Theory  of,  respecting  Internation- 
al Law,  17. 
Guerillas,  214. 
Guidon  de  la  Mar,  5. 

Hanseatic  League,  constitution  of  the,  7. 
Heinrich's  case,  102. 
High  seas,  42. 

Claims  to  dominion  over  portions 
of  the,  43. 

Freedom  of  the,  43. 
Humanity,  duty  of,  93. 

Immunities  of  ambassadors,  150. 
Imperfect  rights,  92. 
Impressment  of  seamen,  380. 
Independence  of  states,  principle  of,  31. 

Grotius's  view  of,  17. 
Intercourse,  duty  of,  94. 

Not  a  right,  95. 

Between  belligerents  in  war,  237. 
Interference,  when  justified,  74. 

(a.)  To  assist  a  state  in  suppress- 
ing rebellion,  75. 

(6.)  In   accordance    with    treaty 
stipulations,  76. 

(c.)  In  self-defence,  77. 

(d)  In  behalf  of  the  balance  of 

power,  77. 
International  Law,  2. 

Difference  between  International 
and  Municipal  Law,  2. 

Divisions  of,  24. 


History  of,  3. 
Sources  of,  18. 
Parties  to,  26. 

Interpretation  of  treaties  (see  Treaties), 
180. 

Jugements  of  Oleron,  5. 
Jurisdiction  of  states,  54. 
Where  exercised,  54. 
In  whom  vested,  55. 
Where  exclusive,  56. 
Exterritorial,  when  exercised,  56. 
Consular,  161. 

Jurisdictional  powers  of  government,  54, 
Classification  of,  30,  54. 
(a.)  Legislative,  55. 
(6.)  Executive,  56. 
(c.)  Judicial,  56. 
Jus  Feciale,  4. 
Jus  Gentium,  17. 

Laconia,  case  of  the,  188. 
Language  of  diplomacy,  147,  170. 
Law  in  general,  1. 

International,  2. 

Municipal,  1. 

Distinction  between  International 

and  Municipal,  2. 
Laws  of  Antwerp,  7. 
Laws  of  war,  208. 

On  land,  218. 

On  the  sea,  226. 
Legislation,  right  of,  142. 
Licenses  to  trade,  in  war,  240. 

By  whom  issued,  240. 

Conditions  of,  240. 
Lieber,  Dr.  Francis,  rules  of  war  pre- 
pared by  (Appendix  A),  395. 

Marine  League,  the,  jurisdiction  over, 

40. 

Maritime  capture,  259. 
Maritime  ceremonial,  87. 
Maritime  commerce,  effect  of,  upon  the 
development  of  International  Law, 
45. 
Maritime  Law,  early  codes  of. 

(a.)  The  Consolato  del  Mare,  6. 
(&.)  The  Constitutions  of  the  Han- 
seatic League,  7. 

(c.)  The  Customs  of  Amsterdam,?. 
(d.)  The  ,Guidon  de  la  Mar,  5. 
(e.)  The  Jugements  of  Oleron,  5, 
(/)  The  Laws  of  Antwerp,  7. 


INDEX. 


465 


(y.~)  The  Maritime  Law  of  "VTis- 

buy,  7. 

Maritime  ordinances  of  Louis  XIV.,  6. 
Martial  law,  247. 
Measures  of  redress,  193. 
(a.)  Retorsion,  194. 
(b.)  Reprisals,  195. 
Mediation,  190. 

Methods  of  adjusting  international  dis- 
putes, 186. 

Military  ceremonial  on  land,  91. 
Most-favored-uation  clause  (see  Trea- 
ties), 183. 
Mutual  respect,  duty  of,  83. 

To  whom  shown  (see  Maritime 
and  Military  Ceremonial),  85. 

Nation,  definition  of  the  term,  28. 
Nation  and  state,  not  synonymous,  28. 
National  character,  98. 

How  determined  in  the  case  of  an 

individual,  98. 

Change  of,  how  effected  (see  Nat- 
uralization and  Expatriation), 
100. 

Naturalization,  100. 
Conditions  of,  101. 
How  effected,  100. 
Heinrich's  case,  102. 
Largomarsini's  case,  105. 
Koszta's  case,  103. 
Treaties  of  the  United  States  on 

the  subject  of,  107. 
Navigation — 

Of  coast  sea,  40. 
Of  closed  seas,  37. 
Of  boundary  rivers,  44. 
Of  straits,  37. 
Of  the  high  seas,  42. 
Neutral,  or  neutral  state,  how  defined. 

276. 

Duty  of,  in  time  of  war,  297. 
Responsibility  of,  in  respect  to  the 

acts  of  its  subjects,  302. 
Neutral  duties,  297. 

Duty  of  strict  neutrality,  297. 
Asylum  to  troops  and  ships,  299. 
Responsibility  of  a  neutral  state 
for  the  acts  of  its  subjects,  302. 
(a.)  View  of  England  and  the 

United  States,  303. 
(b.)  View  of  Continental  states. 
305.     (See  case  of  the  Ala- 
bama, 315.) 

30 


Neutral  rights,  306. 

Immunity  of  neutral  territory  from 

acts  of  belligerency,  300, 306.   - 
Case  of  the  Chesapeake,  307. 
Case  of  the  Florida,  308. 
Neutrality,  276. 

Origin  and  development  of  the 

neutral  theory,  276. 
Rule  of  the  ConsolatodelMare,279. 
Principle  of  "free  stiips.free  goods," 

28i. 
Rule  of  the  Declaration  of  Paris, 

284. 
Claims  to  exclusive  dominion  of 

the  sea,  288. 
Colonial  monopolv,  291. 
Rule  of  1756,  292.' 
Development  of  the  theory  among 

the  non-maritime  states  of  Eu- 
rope, 292. 

Influence  of  England,  293. 
General  acceptance  of  the  modern 

theory,  its  later  history,  294. 
Gradations  of  neutrality,  295. 
Permamcnt,  296. 
Armed,  296. 
Strict,  297. 
Neutrality  laws.  309. 

Neutral  duty  of  a  state  determined 

by  Internationa],  not  Municipal 

Law,  310. 
Laws  of  England  on  the  subject 

of,  311. 
Laws  of  the  United  States  on  the 

subject  of,  313. 

Laws  of  other  states  on  the  sub- 
ject of,  314. 
Non-combatants  in  war,  treatment  of, 

233. 

Notice  of  a  state  of  war,  to  whom  giv- 
en, 204. 

Occasional  contraband,  362. 
Occupation,  military,  244. 

Different  views  as  to,  245. 

Present  view  of,  246. 

Martial  law,  or  die  state  of  sieg '. 

247. 

Right  of  military  occupation  de- 
fined. 247. 

(Ecumenical  councils,  13. 
Offences  against  the  knvs  of  war,  241. 
Oriental  monarchies,  existence  of  In- 
ternational Law  among,  3. 


466 


INDEX. 


Pacific  blockades,  373. 
Paroles,  236. 

Parties  to  International  Law,  26. 
Peace,  treaties  of,  255. 
Perfect  rights  or  duties  of  states,  70. 
Definition  of  a  perfect  right,  70. 
Classification  of,  70. 
The  duty  of  mutual  respect,  83. 
The  duty  of  non-interference,  74. 
The  enforcement  of  treaty  stipula- 
tions, 74. 

Interference,  when  justified,  74. 
Protection  of  subjects,  72. 
The  right  of  reputation,  73. 
The  right  of  self-preservation,  70. 
PeterhofF,  case  of  the,  349. 
Pope,  decisions  of  the,  in  international 

controversies,  13. 
Pope  and  emperor,  position  of,  in  the 

Middle  Ages,  11. 
Postliminy,  rules  of,  266. 
Power  of  belligerents  over  neutral  trade, 

338. 

Pre-emption,  364. 
Prisoners  of  war,  233. 
Private  International  Law,  definition, 

132. 
Relations  of  states  and  individuals 

at,  132. 
Practice  of,  based  upon  comity,  or 

consent,  132. 

Origin  of  the  practice,  133. 
Subjects  treated  of  in,  136. 
Limitations  upon  the  practice  of, 

137. 

'   Effect  of  foreign  judgments,  138. 
Condition  of  reciprocity,  138. 
Why  produced  before  the  courts 

of  a  state,  139. 
When  effective,  139. 
Practice  of  states  in  the  matter  of 

foreign  judgments,  139. 
Prize  in  war,  261. 
Prize  courts,  268. 

Property,  treatment  of,  in  war,  226. 
Property  of  the  enemy,  public  and  pri- 
vate, treatment  of  in  war,  226. 
Protocol,  183. 

Quarter,  in  war,  222. 

Refusal  of,  not  warranted,  222. 

Ransom  of  captured  vessels,  233. 
Ransom  contracts.  234. 


Rebellions,  199. 

Recapture  of  prizes  at  sea,  266. 

Recez,  183. 

Reprisals  (see  Means  of  Redress),  195. 

Requisitions,  228. 

Responsibility  of  a  neutral  state  for  the 

acts  of  its  subjects,  302. 
Retaliation  in  war,  251. 

Limitations  upon  the  practice, 252. 
Retorsion  (see  Means  of  Redress),  194. 
Revival  of  commerce,  effect  of  upon  the 
development  of  International  Law,  5. 
Rhodian  laws,  7. 
Right  of  search,  375. 
Rights  of  sovereign  states,  28. 
Perfect  rights,  70. 
Imperfect  rights,  92. 
River  navigation,  right  of,  44. 

Cases  of  the  Main,  Meuse,  Moselle, 
Neckar,  Rhine,  and  Scheldt,  44. 
Cases  of  the  Elbe,  Douro,  Po,  Vis- 
tula, and  Weser,  45. 
Case  of  the  Danube,  45. 
Case  of  the  Mississippi,  46. 
Case  of  the  St.  Lawrence,  49. 
Rivers  as  boundaries,  35. 

Navigation  of,  not  a  perfect  right, 

44. 

Roman  Church,  Influence  of,  upon  the 
development  of  International  Law,  1 1. 
Roman  empire,  11. 

Roman  Law,  influence  of,  upon  Inter- 
national Law,  19. 
As  a  source  of  International  Law, 

19. 

Early  misconception  as  to,  21. 
Jus  Feciale,  21. 
Jus  Gentium,  20." 
Law  of  the  XII.  Tables,  20. 
Rules  of,  as  to  river  boundaries,  35. 
Romans,  International  Law  among  the, 

4. 
Rules  of  war  on  land. 

(a.)   Dr.  Lieber's  Rules  for  the 
Government  of  Armies  in  the 
Field  (Appendix  A),  395. 
(6.)  The  Declaration  of  St.  Peters- 
burg (Appendix  D),  440. 
(c.)  Rules  of  the  Institute  of  In- 
ternational Law  (Appendix  E)< 
442. 

Safe-conducts,  239. 
Safeguards,  239. 


INDEX. 


467 


Salvage  (see  Recapture),  267. 

Sea,  claims  to  dominion  over  portions 

of  the,  43. 
Jurisdiction  over  coast   (see  the 

Marine  League),  40. 
Freedom  of  the,  43. 
Sea  laws,  5. 

Search,  the  belligerent  right  of,  375. 
Definition  of  the  right,  375. 
When  and  where  exercised,  375. 
Manner  in  which  the  right  is  ex- 
ercised, 37G. 
Duty  of  boarding  party,  377.   (See 

Bight  of  Visitation,  379.) 
Of  merchant  vessels  in  time  of 
peace,  when  authorized,  386. 
(a.)  To  execute  revenue  laws, 

386. 

(6.)  On  suspicion  of  piracy,  387. 
{c.)  Inspection  of  merchant  ves- 
sels by  war  vessels  of  the 
same  nation,  387. 
<W.)  Right  of  approach  to  ver- 
ify  nationality,  387.     (See 
Case  of  the  Virginius,  388.) 
Seas,  the  high,  42. 
Servitudes.  52. 

How  created,  53. 
How  terminated,  53. 
Positive,  53. 
Negative,  54. 
Examples.  53,  54. 
Ship  canals,  39. 

Jurisdiction  over,  39. 
Neutrality  of,  in  general,  39. 
Case  of  the  proposed  Nicaragua 

canal,  40. 

Case  of  the  Panama  canal,  40. 
Sound  dues,  38. 
Sources  of  International  Law,  18. 

Decisions  of  international  courts, 

or  boards  of  arbitration,  18. 
Decisions  of  municipal  courts,  23. 
Diplomatic  correspondence,  19. 
Divine  law,  the,  24. 
History — general   histories,  and 
histories  of  important  epochs, 
24. 

Municipal  law  of  states,  24. 
Roman  Law,  the,  19. 
State  papers,  19. 
Text-writers,  22. 
Sovereignty  of  states,  28. 
How  acquired,  34. 


How  lost,  34. 

Test  of  a  sovereign  state,  33. 

Classification  of  sovereign  powers, 

30. 

The  essential  attributes  of  sover- 
eignty, 31. 
(«.)  Sovereignty,  31. 
(6.)  Independence,  31. 
(c.)  Equality,  31. 
Spies  in  war,  '241. 
Springbok,  case  of  the,  346. 
State,  the  term  defined,  28. 

Difference    between    the    terms 

"  state  "  and  "  nation,"  28. 
Classification  of  states,  28. 
Sovereign,  32. 
Dependent,  or  semi-sovereign, 

32. 

Confederate,  32. 
Belligerent,  200. 
Neutral,  276. 
Government  of  states,  28. 

Classification  of,  29. 
Territory  of  a,  35. 

St.  Petersburg,  Declaration  of  (Appen- 
dix D),  440. 
Straits,  37. 

Jurisdiction  over,  37. 
Rights  of  ownership  and  jurisdic- 
tion over,  37. 

Right  of  passage  through,  38. 
Subjects  of  states  (see  Citizens),  98. 
The  terms  "citizen"  and  "sub^ 

ject"  synonymous,  98. 
Classification  of,  99. 
Duty  of  allegiance,  98. 
Native-bom,  99. 
Naturalized,  100. 
Right  to  protection,  98. 

Temporary  occupation  in  war,  244. 
Territory,  defined, 35. 

What  constitutes  the  territory  of 

a  state,  35. 
Boundaries,  35. 
Rivers  as  boundaries,  35. 
Navigation  of  boundary  rivers.  44. 
Text-writers,  works  of,  as  a  source  of 

International  Law,  22. 
Classification  of,  22. 
Thirty  Years'  War,  influenceof,  upon  de- 
velopment of  International  Law,  16. 
Treaties  and  conventions,  165. 
Purpose  of,  165. 


468 


INDEX. 


Eight  to  make  treaties  an  incident 

of  sovereignty,  1(>5. 
Contracts   and   agreements   with 

individuals,  166. 
Treaty-making  power,  106. 
Conditions  essential  u>  the  validi- 
ty of  treaties,  167. 
(a.)  Power  of  the  contracting 

parties,  167. 
(J.)  Consent  of  the  contracting 

parties,  167. 
(c.)   Possibility    of   execution, 

168. 

Binding  force  of  treaties,  169. 
Mannerof  negotiating  treaties,  169. 
Language  used,  170. 
Form  and  signature,  171. 
Ratification  of  treaties,  172. 
Classification  of,  according  to  their 

nature,  173. 

Transitory  and  permanent,  174. 
Classification  of,  according  to  their 

objects,  174. 

Cartels  and  capitulations,  174. 
Treaties  of  alliance,  175. 
Treaties  of  guarantee,  176. 
Reciprocity  treaties,  178. 
Treaties  of  peace,  257. 
Termination  of  treaties,  179. 
Rules  for  the  interpretation  of 

treaties,  180. 

Terms  used  in  treaties,  183. 
Troops,  neutral  conveyance  of  enemy's, 

356. 
Truce,  253. 

Usages  of  war,  208. 

(/See  Appendices  A,  C,  D,  E.) 

Virginius,  case  of  the,  388. 
Visitation,    right    of    (see    Right    of 
Search),  379. 

War,  198. 

The  right  of  redress,  198. 
Definition  and  purpose,  198. 
Rightfulness  of  war,  199. 
Classification  of,  199. 
The  belligerent  parties,  200. 
Right  of  declaring  war,  in  whom 

vested,  201. 
Causes  of  war,  201. 
Responsibility  for  a  resort  to  war, 
202. 


Moral  considerations  involved, 

202. 
Declaration  of  war,  and  its  effects, 

203. 

Ancient  and  modern  rule,  '203. 
Notification  of,  to  whom  given, 

204. 

Effect  of,  upon  treaties,  204. 
Effects  of  a  state  of  war,  205. 
Upon  subjects  of  an  enemy  in 

belligerent  territory,  200. 
Upon  property  of  enemy  sub- 
jects in  belligerent  territory, 
207. 
Laws  of  war,  208. 

Their  character  and  tendency, 

208. 

Subjects  discussed  in,  210. 
Amount  and  kind  of  force  that 

may  be  used,  210. 
Legal  effects  of  a  state  of  war 
upon  the  subjects  of  the  bel- 
ligerent states,  210. 
Who   may  lawfully   carry   on 

war,  211. 

Armed  forces  of  a  state,  211. 
Partisans,  211. 
Levees  en  masse,  212. 
Guerillas,  214. 
Forces  that  may  not  be  used 

in  war,  214. 

Wars  with  savages,  215. 
Forces  employed  at  sea,  215. 
Naval  establishments,  regular 

and  volunteer.  216. 
Privateers,  216. 
Letters  of  marque,  216. 
Effect  of  modern  inventions,  and 
of  improved  methods  of  attack 
and  defence,  218. 
Methods  of  carrying  on  war,  218. 
Rule  of  good  faith;  use  of  deceit, 

219. 
Attack  of  places,  219. 

Duty  of  the  commanding  officer 
in  the  matter  of  surrender, 
221. 
Use  of  the  enemy's  uniform  and 

flag,  222. 

Rule  as  to  quarter,  222. 
Treatment  of  individuals  of  the 

enemy,  222. 

Forbidden  practices,  223. 
Instruments  of  war,  223. 


INDEX. 


469 


What  instruments  arc  furbid- 

den,  224. 

Torpedoes,  mines,  etc.,  225. 
The  usages  of  war  at  sea,  226. 
The  public  and  private  property 

of  the  enemy,  226. 
Treatment  of  property  on  land, 

226. 
(a.)  The  public  property  of 

the  enemy,  226. 
(6.)  The  private  property  of 

enemy  subjects,  227. 
(c.)  Requisitions,  228. 
(d.)  Contributions  of  war,  230. 
(e.)   Captured    property    on 

land ;  booty,  230. 
Treatment  of  non-combatants  in 

the  theatre  of  war,  232. 
Prisoners  of  war,  233. 

Who  may  be  made  prisoners  of 

war,  234. 

Treatment  of,  234. 
Character  of  their  confinement, 

235. 
Status  of  prisoners  of  war,  how 

terminated,  235. 
(a.)  Exchange  of  prisoners, 

235. 
(6.)  Paroles,  236. 

By  whom  given,  236. 
Conditions  of  parole,  237. 
Breach  of  parole,  237. 
Intercourse  between  belligerents, 

237. 

Flags  of  truce,  238. 
Rules  as  to  the  use  of  flags,  238. 
Cartels,  239. 
Capitulations,  239. 
Safe-conducts,  239. 
Safeguards,  239. 
Licenses  to  trade,  240. 
Offences  against  the  laws  of  war, 

241. 

(a.)  Being  a  spy,  241. 
(b.)  Being  a  guerilla,  214, 242. 
(c.)  Crimes  of  violence,  243. 
Right  of  temporarv  occupation, 

244. 
History  of  the  different  views 

of  military  occupation,  245. 
Present  view  of  occupation,  246. 
Rights  of  occupation,  247. 


Martial  law,  or  the  state  of 

siege,  how  exercised,  247. 
Difference  of  opinion  as  to  the 
meaning  of  the  term  "  occu- 
pation," 250. 

Permanent  occupation,  251. 
Retaliation  in  war,  251. 

Limitations  upon  the  exercise 

of  the  right,  252. 
The  termination  of  war,  253. 
Suspensions  of  hostilities — truces, 

253. 
(a.)  Special  traces,  253. 

What  may  be  done  during  a 

special  truce,  253. 
(6.)   General  truces,  or  armis- 
tices, 254. 
Treaties  of  peace,  255. 

In  what  respects  different  from 

ordinary  treaties,  255. 
How  executed,  256. 
When  effective,  257. 
Their  binding  force,  256. 
Effects  of  treaties  of  peace,  257. 
(«.)  Upon  the  causes  of  the  war, 

257. 

(6.)  Upon  individuals,  257. 
(c.)  Treatment  of  occupied  ter- 
ritory, 258. 
The   rules   of  maritime   capture, 

259. 
Their  character  and  tendency, 

259. 
Forces  that  may  be  employed 

in  maritime  war,  260. 
Prize,  260. 

Title  to  prize,  in  whom  vest- 
ed, 261. 

Duty  of  captor,  261. 
Ransom  of  captured  vessels, 

263. 

Ransom  contracts,  264. 
Hostages,  265. 
Recapture    and    postliminy, 

266. 

Prize  courts,  268. 
Jurisdiction  of,  269. 
Law  applied  by,  270. 
Procedure  in  prize  cases,  271. 
Right  of  appeal,  272. 
Rules  for  determining  nation- 
ality of  ships  and  goods,  272. 


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of  Willianvthe  Silent  to  the  Twelve  Years'  Truce— 1548-1609.  With 
a  full  View  of  the  English-Dutch  Struggle  against  Spain,  and  of  the 
Origin  and  Destruction  of  the  Spanish  Armada.  By  JOHN  LOTHROP 
MOTLEY,  LL.D.,  D.C.L.  Portraits.  4  vols.,  in  a  Box,  8vo,  Cloth, 
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THE  LIFE  AND  DEATH  OF  JOHN  OF  BARNEVELD,  Advo- 
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ments of  the  "Thirty  Years' War."  By  JOHN  LOTHROP  MOTLEY, 
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GIBBON'S  ROME.  The  History  of  the  Decline  and  Fall  of  the  Ro- 
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MAN,  M.  GTJIZOT,  and  Dr.  WILLIAM  SMITH.  G  vols.,  in  a  Box,  8vo, 
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A  DICTIONARY  OF  THE  ENGLISH  LANGUAGE.  Pronounc- 
ing, Etymological,  and  Explanatory :  embracing  Scientific  and  other 
Terms,  Numerous  Familiar  Terms,  and  a  Copious  Selection  of  Old 
English  Words.  By  the  Rev.  JAMES  STORMONTH.  The  Pronuncia- 
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RECOLLECTIONS  OF  PRESIDENT  LINCOLN  and  His  Adminis- 
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